By Howard Fischer
Twitter: @azcapmedia

PHOENIX — So you got fired from your job for refusing to get vaccinated or wear a mask.

You also may have forfeited any right to collecting unemployment benefits.

That’s the conclusion of David Selden, a veteran labor law attorney. And he said it’s not just because Arizona is an “at-will” employment state where companies can fire workers for no reason at all.

But the Department of Economic Security, the agency that administers the benefits, said it may not be that cut and dried.

That issue has taken on increasing importance in the wake of an opinion issued last month by Attorney General Mark Brnovich. He concluded private employers are free to require their workers to be vaccinated against COVID.

The only requirement is that company must make “reasonable accommodations” for those who cannot get vaccinated for medical or disability reasons, or have a “sincerely held religious belief.”

Selden said that pretty much anyone else who is let go — or quits — over issues like vaccination or masks has been terminated for refusing to comply with a condition of employment.

What makes that relevant is that jobless benefits generally are limited to those who are fired through no fault of their own. But refusing to comply with what a company sees as a safety measure, Selden said, is something quite different.

In fact, he said, it might even be considered necessary and good business for employers to get rid of workers who don’t comply.

Selden said during the first round of COVID, the federal Occupational Safety and Health Administration began inspections and investigations in cases where they saw people working in close proximity to one another, not socially distanced and not using protective gear.

“Even in Arizona there were some reviews of working conditions on whether or not employees were being subjected to hazards based upon the adequacy or inadequacy of the preventive measures that have been adopted,” he said.

He pointed out that OSHA regulations impose a duty on employers to provide a workplace free of recognized hazards that could cause the risk of death or serious injury.

“Working in proximity to people, or where you’re going to be exposed to customers who could potentially be COVID positive, that could be one of those conditions,” Selden said.

All that leads to the question of whether a worker fired for refusing to be vaccinated or wear a mask can collect benefits.

Tasya Peterson, spokeswoman for DES, said there are multiple factors in state and federal law to determine who is eligible.

“Losing a job because of a failure to become vaccinated will not immediately disqualify an individual from benefits in Arizona,” she said. Conversely, she said not everyone who loses a job because they cannot — or will not — become vaccinated will be eligible.

“All case-by-case reviews will include obtaining information from the individual and the former employer as part of the fact-finding process,” Peterson said.

Selden acknowledged that, for the moment, it is “an open issue” as to whether disregarding an employer’s rule would be misconduct that is contrary to the company’s interest and therefore a justified firing — one that disqualifies someone from collecting jobless benefits

“I think there’s a good argument to be made that yes, it is, because the employer is trying to provide a safe workplace for all of its employees,” he said. Selden said it’s no different than disciplining or firing a worker for violating any other safety rule.

Masks may be a bit different. Safety issues aside, he said companies are free to impose dress codes on workers.
Consider, Selden said, people who work at In-N-Out Burger have to wear those paper hats.

“Or, you walk into Walmart, there’s a guy with a blue apron,” he continued. “Employers could make this a part of their dress code for whatever reasons of the company image.”

All of that is legitimate, he said, as long as there are those reasonable accommodations, like an alternate workspace.

That might even include being allowed to work from home. And Selden noted companies were doing that before, making it hard for them to say that is no longer possible now.

More complicated is determining whether someone has a “sincerely held religious belief” that a company would be required to accommodate.

Selden noted the Equal Employment Opportunity Commission said that can be based on the religion that people follow. But he said it also can be “a set of beliefs or value systems that takes the same place in that person’s life similar to the role that recognized religions play in the lives of the people who adhere to one of the recognized religions.”

What that can mean, Selden acknowledged, is a wide-open situation where it could come down to a “do-it-yourself” set of beliefs.

“For example, you could say, ‘My Sabbath is Monday, Wednesday, Friday,’” he said. “That’s the bad news for employers.”

But Selden said that, in general, employers have to do

“way less” to accommodate someone’s religious beliefs than they do for someone with a disability. He said companies don’t have to do anything if it involves more than what the law calls a “de minimus” cost, meaning anything more than trifling.