As with most things related to Covid, when something new crops up, there is a void of concrete answers to the question “what happens now?” So, now that employers are issuing vaccine mandates, we’re getting a lot of “what happens now” type questions. I’ll tell you what I know, what’s unclear and what I don’t know, with respect to COBRA and vaccine mandates.
What I know.
We will continue to ask employers whether a person experienced a voluntary or involuntary termination even though ARPA is over. Why? These are weird times we’re living in kids, we had ARRA in 2009 and ARPA in 2021. We could easily have another stimulus package providing government COBRA help for ex-employees. We are encouraging employers to continue to tell us which kind of termination so retroactive fact gathering is easier on everyone if (when?) we have another stimulus package.
What’s unclear.
I tell you all the time that good documentation is critical. And, with this issue in particular, I’m reading several articles that emphasize the importance of keeping good documentation regarding whether a termination was voluntary or involuntary due to a refusal to be vaccinated. There are potential consequences for which option you choose. For example, if you pick involuntary termination, the employee could be ineligible for unemployment due to violating a company vaccine mandate policy. Some say refusing to get vaccinated may be akin to failing to adhere to another company safety protocol, such as attending a training requirement or refusing to take an employer-mandated drug test. Some toss “gross misconduct” around while others argue it might be a voluntary resignation. The distinction is important because gross misconduct is one of only reasons for termination that deems an employee ineligible for COBRA benefits. And that, my friends, is an icy, dicey, very slippery slope.
Can failure to receive the vaccine be considered gross misconduct?
While, admittedly, I am not an expert in who gets unemployment benefits and who does not, I do have expertise when it comes to using gross misconduct to refuse to mail a COBRA notice. Please read my blog article to see why it’s never a good idea. Spoiler alert: gross misconduct has never been legally defined. Court cases brought against employers who decide not to extend COBRA are often won by the plaintiff because every reason brought by the employer is shot down because…wait for it…gross misconduct has no official definition.
The pandemic and vaccine mandates may change all that, but current articles about gross misconduct, the vaccine and unemployment are simply conjecture at this point. Frankly, more guidance is needed, and I’m sure will trickle out as time passes.
What I don’t know.
So, no. I can’t yet help you answer the question of whether refusal to take the COVID19 vaccine constitutes a voluntary or involuntary termination. We’ll keep you posted. In the meantime, document, document, document. If another subsidy happens 18 months from now, you don’t want to be digging through paperwork and wracking your brain trying to remember the circumstances of each previous employee’s termination. And, if by chance you win the lottery, have vacated your current position and find yourself living a life of luxury, your replacement will thank you for being able to easily define the termination because of your good documentation.