By: Christina M. Reger, Esq
and Tatiana Cook
The typical answer to this question is –– it depends. Many employers are now mandating employees receive COVID-19 vaccines to maintain employment. However, many Pennsylvania employees are receiving unemployment benefits due to decreased hours, wages, or loss of jobs. But, as September arrives along with the deadline for unemployment benefits to expire, employers are now wondering what rights they have.
Employees should tread carefully if they choose and refuse to get vaccinated. While Pennsylvania case law is not black and white when it comes to vaccination status, Pennsylvania’s unemployment laws do speak to what employers can do when faced with employee misconduct.
Under Pennsylvania Section 402(e), an employee who is discharged from employment for willful misconduct connected with their work is not eligible to receive unemployment benefits. “Willful misconduct” is considered an act of wanton or willful disregard of the employer’s interests, the deliberate violation of rules, the disregard of standards of behavior which an employer can rightfully expect from an employee, or negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations.
The employer bears the burden of proving that the employee’s actions was willful misconduct. The Pennsylvania Supreme Court decided in Grieb v. Unemployment Comp. Bd. of Review, that a deliberate violation of an employer’s rule that is known to the employee is willful misconduct if the employer’s rule is reasonable and the employee’s conduct was not motivated by good cause and the negligence manifests culpability, wrongful intent, evil design, or intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations.
However, simply violating a rule is not enough. It is the employer’s burden to show that the conduct was intentional and deliberate in nature and it also requires an analysis of the totality of the circumstances. Grieb v. Unemployment Comp. Bd. of Review, 827 A.2d 422, 426 (Pa. 2003)
If an employer has a policy that requires mandatory vaccines for employees, and an employee chooses not to get the vaccine, that action may rise to willful misconduct because the employee is willfully disregarding an employer’s interests. However, the employer must show that the act was willful, intentional and that it harms the employer’s interests. This choice is not applicable to employees who do not vaccinate for religious or ADA reasons. Employers must be mindful of these two exceptions and treat them appropriately.
So what can employers do?
- If an employer has a mandatory vaccine policy, make sure that it is DOCUMENTED.
- COMMUNICATE IT: Employers should communicate with their employees about their policies regarding vaccine mandates and what an employer plans to do if an employee refuses to get the vaccine.
- DOCUMENT AGAIN: Document when you disseminated the policy and have employees sign an acknowledgment.
If you need help … you know where to find me.
Employment Counseling and Compliance Attorney
Sexual Harassment Trainer ◆ Speaker ◆ Author
Christina M. Reger is the Founding Partner of the Law Offices of Christina Reger, LLC. Licensed in Pennsylvania and New Jersey, Christina works with businesses and corporations to prevent litigation from employees and applicants. Christina offers a unique fee structure that provides predictability and accessibility to the legal services her clients need.
Tatiana earned her Juris Doctor degree at Temple University’s Beasley School of Law in May 2020 and is currently sitting for the PA Bar Exam. She is pursuing a career as a litigator, specifically in the field of Labor and Employment. She is a 2021 Regional Trial Competition Finalist, 2020 National Civil Trial Champion and 2019 Semi-Finalist in the National Civil Trial Competition.