As we previously blogged, many employers are now instituting mandatory vaccine policies for their employees. The EEOC, as well as various courts across the country, have determined that, absent an accommodation for religious or disability-related reasons, employees may be lawfully terminated if they refuse to abide by such policies. But what happens if such employees apply for unemployment benefits? Under Maryland law, “if a claimant is found to be discharged for simple misconduct, gross misconduct or aggravated misconduct, benefits will be delayed or denied.”
- Simple Misconduct: an employee discharged for simple misconduct faces a penalty consisting of a delay of payments for five to ten weeks.
- Gross Misconduct: This is defined as (i) a deliberate and willful disregard of standards of behavior that an employer has the right to expect and that shows gross indifference to the employer’s interests; or (ii) repeated violations of employment rules that prove a regular and wanton disregard of the employee’s obligations. Employees fired for gross misconduct will be disqualified until they become reemployed, earn at least 20 times their weekly benefit amount in covered employment, and thereafter become unemployed through no fault of their own.
- Aggravated Misconduct: This is even more serious than gross misconduct and generally involves assault or property damages. If a claimant is discharged for aggravated misconduct, they will be disqualified until they become reemployed, earn at least 30 times their weekly benefit amount in covered employment, and thereafter becomes unemployed through no fault of their own.
An employee who is discharged for refusing to comply with a vaccination policy will be deemed terminated for misconduct. But the question remains: is this simple misconduct, or something more serious? There are no hard and fast rules to determine what constitutes deliberate and willful misconduct, and while it remains an open question, it is likely that willfully refusing to comply with a vaccination policy would be deemed gross misconduct. The exception, however, is when an employee refuses to comply because of a disability or a sincerely held religious belief. Such employees are protected under the ADA and Title VII and would likely be able to successfully argue that, although they were discharged, it was not for misconduct.