Can Fired Unvaccinated Workers Collect NJ Unemployment Benefits?

As the coronavirus pandemic continues, a growing number of New Jersey companies are telling their employees to either get vaccinated or be tested for the virus once or twice a week if they want to keep their jobs.

But what happens if you refuse? Well, that depends.

Get vaccinated or test

For those workers that refuse both the vaccine and the weekly testing, scoring New Jersey unemployment benefits could be tough.

“I can’t point to a decision on this. I think that would be quite difficult in my view anyway for an employee to get unemployment when they refuse to even go through the testing route,” said Peter Frattarelli, a workplace law attorney and chairman of Archer's Labor & Employment Practice Group in Haddonfield, New Jersey.

Get vaccinated with no testing option

For those employees in an environment where vaccines have been mandated without a weekly testing option, they likely have some ground to stand on for refusing to get vaccinated.

“We do believe New Jersey would grant unemployment. That's our best guess,” he said.

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Frattarelli said there was a court decision six or seven years ago involving a mandated flu vaccine where the employee refused and was then able to get unemployment compensation. However, the issue involving the COVID vaccines remains “an open issue.”

The New Jersey Department of Labor and Workforce Development, according to Frattarelli, has not issued any guidance on this matter but that's not unusual.

"It usually is just going to be case by case decisions,” Frattarelli said.

He said at some point, once a decision is rendered in this type of case, it should become standard.

“I suspect it’s going to be consistent. It’s going to be followed,” Frattarelli said.

Quitting not the way to go

Regardless as to how the COVID vaccine is being handled in the workplace, quitting is not the way to go for those workers opposed to getting vaccinated and hoping to collect unemployment insurance.

"They could always quit and argue they had no choice but to quit since they were going to get fired anyway but certainly you’re in much, much better shape if you would wait for them to terminate you as opposed to resigning,” said Frattarelli, adding that workers who feel strongly in the principle that they should not be forced to get vaccinated, should do so with the understanding that they may not collect unemployment for refusing to do just that.

“Certainly if you are in that situation and you can find yourself another job that doesn’t have a vaccine mandate, that would be the obvious solution. Look for another job, find it and then resign,” he said.

In situations where you refuse to get vaccinated for COVID and you want to keep your job but your employer is threatening to terminate you, Frattarelli said you would need to submit to regular testing or request a religious or medical exemption, “and then in that case, depending on the circumstances, the employer would have to accommodate that.”

He said that could mean remote work or taking certain actions within the workplace for safety.