Can workers who are fired for refusing COVID-19 shots collect unemployment insurance? Sue their employer? Maybe.
NOV 17, 2021 AT 5:00 AM
With visitors barred from visiting during the coronavirus pandemic, Ellen Metzger would rub her dying patients’ feet, comb their hair and sing their favorite hymns.
A Gilchrist Hospice Care nurse for six years and a member of the profession for more than four decades, Metzger thought she’d become “hardened” to the losses, but the absence of families bedside challenged her resolve.
Something else eroded her commitment even more: employer, state and federal mandates for COVID-19 vaccination. Metzger refused.
”I’ve been made to feel like I’m a bad nurse and I’m putting patients at risk, and that I don’t care, and that couldn’t be farther from the truth,” she said. “I appreciate the concern, and wanting to keep patients safe, and ‘looking at science,’ but the science I’m looking at doesn’t tell me the same thing.”
Metzger left her job and is considering applying for unemployment insurance. Others are likely to follow suit as they start to bump against COVID-19 vaccination mandates in health facilities, businesses, universities and elsewhere.
The mandates will test how far workers will go when their livelihood, or any income, is on the line. Many states such as New York have told workers, particularly in health and educational fields, they will not qualify for unemployment benefits because they defied policies evenly applied by their employers. A small number of Republican-led states, including Iowa, have passed legislation to allow vaccine refusers to get state-level benefits.
It may be less clear-cut in Maryland. State officials say they will consider “mitigating factors,” though they did not spell out what those are.
A statement from the state Department of Labor, Licensing and Regulation, which oversees the state’s unemployment benefits system, said employers “have the right to set reasonable conditions of employment on their employees as long as those policies are consistently applied and include valid medical and religious exemptions.”
But the statement also said, “Adjudicators must follow-up and determine whether a claimant’s misconduct, quit, or job refusal has mitigating factors.” That applies whether the unemployment is due to vaccine requirements or not.
The number of such claimants so far in Maryland is small — 10. State officials did not reveal whether any have qualified for benefits or how many more people they expect to apply.
Harriet E. Cooperman, an employment and labor attorney and partner at Saul Ewing Arnstein and Lehr, said there is certainly a risk of being denied after refusing a vaccine mandate or any workplace requirement, such as codes of conduct or drug tests.
While she said it’s still too early to tell how the unemployment office will handle those who are fired or considered to have resigned for defying their employer’s vaccine mandates, she believes the government mandates will only increase the risk of denial of benefits.
She said many workers initially opposed to vaccination are relenting to keep their jobs. Some have given in after being denied exemptions. Employers can use their discretion in granting those.
That’s the case with Metzger, who was denied a religious exemption, possibly because she had agreed to past vaccinations. Her employer, Gilchrist, which is affiliated with the Greater Baltimore Medical Center, also refused to allow her to show she has protective antibodies after an earlier case of COVID-19.
GBMC spokesman John Lazarou declined to comment on Metzger’s specific case but said system officials determined that unvaccinated employees providing direct care may present a threat to patients.
About 97% of the staff heeded the mandate, Lazarou added, and the system offered to reposition those who refused to get vaccinated to new jobs that did not involve direct patient care. Only a small portion of the staff chose to leave GBMC because of the mandate, he said.
While people could sue to contest their firings, those challenging because their religious exemptions were denied are especially likely to face tough odds, Cooperman said. She said cases generally will be hard because the Biden administration has made vaccinations mandatory for workers at health care facilities that accept federal Medicare or Medicaid funding, with no option for regular testing instead.
Similar mandates for flu vaccinations have largely held up in court.
The Biden administration also is mandating vaccinations for workers for companies employing more than 100 people under occupational health and safety rules.
Both mandates are being challenged by GOP-led states, and the employer mandate has been temporarily halted by a federal court.
One thing on employees’ side, Cooperman said, is the labor shortage, particularly in health care, where employers including hospitals have said they have gone to lengths to give workers time to consider their decisions and ask questions, including while on unpaid leave, before firing them or asking them to resign.
”Frankly, it’s still really early, and people are still working through it,” Cooperman said.
Worker options may be limited with mandates at so many levels, which are supported by a broad spectrum of groups from the American Medical Association to the U.S. Chamber of Commerce because they keep workers on the job and not out sick or quarantining.
Gov. Larry Hogan issued a statewide order in August requiring hospital and nursing home workers to be vaccinated or tested regularly. Many hospitals dropped the testing option but allowed religious or medical exemptions.
The Maryland Hospital Association supported mandates and said recently that the overwhelming majority had gotten shots, with about 2% to 3% of workers refusing and not granted exemptions. While the percentage is small, that could mean job losses of up to 3,200 out of about 107,000 direct employees.
The ultimate number may be less as workers relent and return to their jobs. A focus now, officials say, is getting the public vaccinated so they don’t further strain the health care system.
“Hospital staffing issues will be eased considerably when hospitals can focus on serving patients whose needs were not preventable,” said Bob Atlas, president and CEO of the Maryland Hospital Association.
Nursing homes, also under the governor’s order, are behind the hospitals in compliance, especially in Baltimore City, on the Eastern Shore and in Western Maryland, according to Joseph DeMattos Jr., president and CEO of the Health Facilities Association of Maryland. About 90% of workers overall are at least partially vaccinated, but rates are closer to half at some facilities.
Some workers opted for testing instead, allowed under the state mandate, but that’s not an option under the new federal mandate for health care workers.
“I support the federal mandate, taking the vaccine is the right thing to do, especially in health care. However, I do wish the federal included a phased-in approach that allowed for a testing alternative for some limited amount of time,” said DeMattos, citing the worker shortage.
While some bristle at the mandates, surveys show they work and are becoming more prevalent.
A recent Kaiser Family Foundation survey of workers found that 25% have vaccine mandates to stay on the job. Half of the workers said they did not support mandates and more than a third of unvaccinated workers said they’d leave their jobs rather than comply with shots or testing — though only 1% actually have done so.
In Maryland, the mandates also are gaining support. The Greater Baltimore Committee, representing businesses and other institutions, last month urged employers to “seriously examine” vaccine mandates.
“The presence of unvaccinated employees in the workplace presents a significant threat of spreading the virus to co-workers, customers and family members, especially children, while also presenting a risk to the stability and business continuity of employers regardless of size,” the GBC’s board said in a statement Oct. 19.
A number of large Baltimore-area employers have mandates, and more are likely to follow the federal requirement, said Donald C. Fry, the GBC’s president and CEO.
In addition to hospital systems and nursing homes, several universities, including the Johns Hopkins University, and businesses and nonprofit groups have mandates. They include CareFirst BlueCross BlueShield, Associated Catholic Charities, and some law firms and other professional firms.
“There’s a strong acknowledgment that vaccines have proven to be effective,” Fry said. “With the level of available vaccines, and the risk [the virus] poses to everyone and business operations, it makes sense for them to seriously look at it.”