Can Kansans get unemployment if they quit due to COVID-19 vaccine mandates? Here's what the experts say.

Andrew Bahl
Topeka Capital-Journal
Kansans dismissed from their jobs for refusing the COVID-19 vaccine are unlikely to be able to claim unemployment benefits, experts say, though the Kansas Department of Labor has provided little insight into how it will tackle the issue.

Kansans dismissed from their jobs for refusing the COVID-19 vaccine are unlikely to be able to claim unemployment benefits — though experts acknowledge some level of uncertainty and the Kansas Department of Labor has provided little insight into how it will tackle the issue.

The matter is also a focal point for conservative legislators, who are expected to target the issue during a slate of upcoming hearings on rebuking proposed vaccine mandates for private sector employers from President Joe Biden's administration.

Generally in Kansas, an individual isn't eligible for unemployment benefits if they are fired for "misconduct connected with the individual's work," or not following their duties to an employer.

For Mark Joshi, a Lenexa-based attorney who handles workplace and employment cases, that hasn't stopped a half dozen individuals from asking about their own cases if they lose their jobs due to pending vaccine mandates.

But in his estimation, it is unlikely they will ever see any benefits.

"I don't think that's going to fly," Joshi said.

Legal precedent could guide unemployment question

In Kansas there is some degree of legal precedent. In 2016, Debra Rhodenbaugh, a McPherson County hospital worker was fired for not getting a flu shot. After Rhodenbaugh began getting unemployment benefits, the hospital asked the Kansas Employment Security Board of Review to rule her ineligible, which they did.

A Shawnee County District court judge and the Kansas Court of Appeals affirmed the decision to deny the benefits.

“Rhodenbaugh owed a duty to the hospital to follow the safety rule by either receiving the flu vaccine or meeting the applicable exemptions,” Appeals court judge Kathryn Gardner wrote in the decision. “Her failure to comply with the rule met the statutory definition of job-related misconduct and thus disqualified her for unemployment benefits.”

The case, while not precedent setting, will likely be instructive for how officials will handle cases arising from vaccine mandates.

Relative to other states, Kansas has fewer requirements from government and private employers requiring the vaccine. It could, however, be dramatically affected by proposed requirements from President Joe Biden's administration mandating the vaccine for workers at large companies, federal contractors and many hospitals and nursing homes. 

Stormont Vail Hospital's vaccine mandate is set to kick in at the end of the month and the system has said it has seen relatively few members leave because of the pending requirement, instead noting that sickness and burnout are more pressing foes.

More:K-State, KU, Wichita State to require staff COVID vaccination by Dec. 8 under Biden Administration mandate

Meanwhile, union members in Wichita are weighing action in response to requirements from Spirit Aerosystems and Textron to require their workers be vaccinated. And the state's public research universities are set to require the vaccine in compliance with Biden's vaccination mandate for federal contractors.

KDOL to use ‘individual merits’ of case to guide decision

KDOL spokesperson Becky Shaffer said the agency would treat each case as if it were "unique" and take into account the "distinctive set of facts and circumstances that must be reviewed in order to make a determination."

Shaffer said she couldn't disclose whether the agency has begun receiving claims from individuals fired for not getting the vaccine.

"Each case must be adjudicated on its individual merits, there is no general purpose, or 'one size fits all' answer that can be provided to resolve the question of whether or not an individual who separates from employment due to the individual’s refusal to receive a vaccination will be found to be qualified to obtain unemployment insurance benefits," she said.

Forrest Rhodes, an employer lawyer for Foulston Siefkin in Wichita, noted there would be some nuance when it comes to exemptions, with federal law requiring employers grant exclusions on the basis of a medical issue or sincerely held religious beliefs.

Whether an employee should have been granted an exemption could be considered in determining their status for unemployment benefits, Rhodes said, though he noted this could also be addressed in a legal challenge under federal anti-discrimination law.

More:Kansas' outdated unemployment system has history of broken contracts and millions wasted. Here's what happened.

Legislators to consider requiring benefits be paid out

Kansas Senate President Ty Masterson, middle, R-Andover, discusses the vaccine mandate for federal workers President Biden put into place last month during a meeting of the Legislative Coordinating Council.

Some conservative legislators, in Kansas and across the country, have pushed for changes in statute clarifying that employees who are fired or quit due to the mandates can receive unemployment. Lawmakers in Pennsylvania, Wisconsin and Tennessee have introduced such measures.

In Kansas, Sen. Mark Steffen, R-Hutchinson, included that item in a list of elements he was pushing to take up in a theoretical special session dedicated to undercutting vaccine mandates. 

The matter is also likely to be discussed by a committee formed by state legislators to discuss a response to federal vaccine requirements. That panel is set to begin meetings Oct. 29 and 30.

Sen. Rob Olson, R-Olathe, who chairs the Senate Commerce Committee, said he was anticipating taking the issue up in the next legislative session, which is set to begin in January. A special session remains unlikely, as only the governor or a two-thirds majority in both chambers of the legislature can recall lawmakers.

"It is a topic that should be taken up," Olson said. "Whether the bill moves out or not is up to a majority of the committee. I expect that will be one of the first things we take up as a committee (next session)."

In the meantime, it is possible there will be a flood of residents who attempt to file for unemployment due to the vaccine.

A Biden administration requirement that federal contractors be vaccinated is set to go into effect on Dec. 8 and the Occupation Safety and Health Administration is finalizing their rules for private employers with more than 100 workers, though that order is likely to be challenged in court.

"I think there's going to be a large number of claims, because people are going to test the system and see what happens," Rhodes said.

Andrew Bahl is a senior statehouse reporter for the Topeka Capital-Journal. He can be reached at abahl@gannett.com or by phone at 443-979-6100.