Written By Jean Meyer
With F.D.A. approval of the Pfizer Covid-19 vaccine on August 23, 2021[1], a tidal wave of employer driven vaccine mandates is likely to arrive in short order. For those employees who refuse to take the Covid-19 vaccine, for whatever reason, a question they may ask themselves is – am I eligible for unemployment compensation benefits after my employment is terminated. This article addresses that question and analyzes relevant Colorado law. To note, each state’s governing law is unique and there is no one size fits all answer to the question presented in this article.
Under Colorado law, “[u]nemployment compensation benefits are not provided to an employee whose separation from employment is voluntary or for cause.” Parker v. Daniels Motors, Inc., 738 P.2d 68, 69 (Colo. App. 1987). In evaluating the situation of an employee who would like to continue in his or her employment but is terminated because of a refusal to take a Covid-19 vaccine, the question becomes – does refusal to take a Covid-19 vaccine constitute “for cause” as contemplated by the governing statute (Colo. Rev. Stat. § 8-73-108[2] - the “Statute”).
The Statute itemizes the instances in which unemployment benefits are not available and generally notes:
Subject to the maximum reduction consistent with federal law, and insofar as consistent with interstate agreements, if a separation from employment occurs for any of the following reasons, the employer from whom such separation occurred must not be charged for benefits which are attributable to such employment and, because any payment of benefits which are attributable to such employment out of the fund as defined in section 8-70-103 (13) is deemed to have an adverse effect on the employer’s account in such fund, a payment of such benefits must not be made from such fund:
C.R.S. § 8-73-108(5)(e).
The Statute then goes on to enumerate 24 instances which foreclose the opportunity to receive unemployment compensation benefits.
A review of those itemized justifications suggests that the most likely reason which may be used to justify the denial of unemployment benefits is as follows:
(VII) Violation of a statute or of a company rule which resulted or could have resulted in serious damage to the employer’s property or interests or could have endangered the life of the worker or other persons, such as: Mistreatment of patients in a hospital or nursing home; serving liquor to minors; selling prescription items without prescriptions from licensed doctors; immoral conduct which has an effect on worker’s job status; divulging of confidential information which resulted or could have resulted in damage to the employer’s interests; failure to observe conspicuously posted safety rules; intentional falsification of expense accounts, inventories, or other records or reports whether or not substantial harm or injury was incurred; or removal or attempted removal of employer’s property from the premises of the employer without proper authority;
Analyzing this statute suggests that it can be broken down into the following two elements:
(1) An employee violates a statute or a company rule (e.g. – company rule to get vaccinated against Covid-19);
(2) The employee’s violation of the statute or company rule could have resulted in serious damage to the employer’s property, interest, or could have endangered the life of the worker or other persons (e.g. – the employer may argue that failure to get vaccinated threatened the health of the employer’s other employees or business interests (think, the ability for the employer to advertise to prospective patrons that all of its employees are vaccinated)).
Indeed, the Colorado Court of Appeals has adopted this very analysis: “In determining whether the criteria for § 8-73-108(5)(e)(VII) are met, the issues are twofold. The first is whether claimant violated a statute or company rule. The second is whether any such violation resulted or could have resulted in serious damage to employer's property or interests. Phelps Tointon, Inc. v. Div. of Emp't & Training, 824 P.2d 827, 829 (Colo. App. 1991).
Applying this law to the facts of an employee who refuses to get vaccinated leads to the following conclusions. The first element will likely be easily satisfied – an employer will almost certainly be able to establish that where an employer maintains a vaccine mandate requirement for its employees and the employee refuses to get vaccinated, the employee has violated a company rule.
However, the second element will likely be hotly contested. Employers may have a difficult time satisfying the second element. For example, in the instance of an insurance adjuster who worked from home even prior to Covid-19, how will the employer establish that the employee who refuses to get vaccinated has threatened “the life of the worker or other persons?” Or, what about an employee who has successfully worked remotely from home during the pendency of the Covid-19 pandemic, will the employer be able to establish that the employee’s actions threatened the life of the employee or other persons?
Another basis for denial of unemployment benefits pursuant to the Statute could be located in C.R.S. § 8-73-108(5)(e)(VI), which provides:
(VI) Insubordination such as: Deliberate disobedience of a reasonable instruction of an employer or an employer’s duly authorized representative, refusal or failure to obtain, maintain, or renew licenses, certifications, credentials, conditions, or other professional designations which are necessary to permit the claimant to perform a job, failure to keep in good standing with the union because of nonpayment of dues, or repeated acts of agitation against employer working conditions, pay scale, policies, or procedures; except that orderly action on the part of an employee or through union negotiation shall not be so considered if such action does not interfere with work performance.
The Colorado Court of Appeals has interpreted the above language and noted that “Section 8-73-108(5)(e)(VI) provides for disqualification from unemployment benefits when a job separation results from insubordination, a term that includes ‘deliberate disobedience of a reasonable instruction of an employer.’ . . .As noted by claimant, an objective standard must be applied in analyzing a disqualification under § 8-73-108(5)(e)(VI) for insubordination. Under that standard, the Panel must use its independent judgment to determine whether, under the particular facts and circumstances of each case, the request that claimant refused was one that a reasonable person would have refused.” Bell v. Indus. Claim Appeals Office, 93 P.3d 584, 585 (Colo. App. 2004).
In evaluating whether the employer’s request that the employee become vaccinated was reasonable, a case specific inquiry will be necessary, and the employee may introduce similar arguments as set forth above that, for example, it was unreasonable to require the employee to become vaccinated when the employee had successfully been working from home already, or could reasonably do so. Alternatively, the employee could argue that the employee had legitimate concerns of an adverse reaction to the vaccine considering the employee’s specific medical history. To support this argument, the employee may consider introducing expert testimony of a treating physician to bolster the contention - that the employer’s request that the employee become unvaccinated was unreasonable.
In summary, the conclusions to be drawn are as follows:
(1) The inquiry must focus on the state specific governing law concerning unemployment benefits.
(2) As applied to Colorado law, each employee seeking to obtain unemployment benefits will need to undertake a case specific analysis and meaningfully evaluate whether the employee’s refusal be vaccinated against Covid-19 “could have resulted in serious damage to the employer’s property, interest, or could have endangered the life of the worker or other persons” or whether the employee can establish that the request by the employer that the employee become vaccinated was unreasonable on an objective standard.
A definitive answer as to whether unemployment compensation benefits are available to an employee terminated for refusal take the Covid-19 vaccine cannot be answered unequivocally for all employees.
For additional information concerning the availability of unemployment compensation benefits for an employee terminated for refusing to take the Covid-19 vaccine, you can reach Jean Meyer by telephone at (406) 219-8422 or by e-mail at meyer@meyerconstructionlaw.com.
[1] https://www.cnbc.com/2021/08/20/full-approval-for-pfizer-covid-vaccine-could-come-from-fda-monday-report-says.html
[2] https://law.justia.com/codes/colorado/2017/title-8/labor-iii-employment-security/article-73/section-8-73-108/