Eight Hospital Employees Fired For Refusing Flu Vaccines

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24. The problem for the Hospital is this nurse was permitted NOT to take the vaccine for 21 years.

Now, the employer requires her to take the vaccine? While Indiana is still a state with the at will doctrine of employment (an employer can terminate an employee for any reason or no reason except if the reason is illegal OR the employee has a contract that states otherwise, i.e. a Union).

Given the facts in this case, the Nurse can be terminated, but the issue is this willful misconduct AND if it is does she has just cause or necessitous and compelling reason to refuse to take the Vaccine? I bring that up, for that is the test for Unemployment Compensation. Refusal to get a Vaccine may be willful misconduct (as that term is used in unemployment law, which means anything NOT in the best interest of the Employer) but does she have a necessitous and compelling reason for her conduct?

Under Unemployment Compensation laws in many states (I practice in Pennsylvania) any employee can quit they job, or even do "Willful Misconduct" (as that has been defined by the Courts) if the employee has a "Necessitous and Compelling reason" for her action.

The First question in regard to Unemployment Compensation, is the demand of the Employer reasonable given that the Employer has made no such demand for 21 years? If the demand is NOT reasonable, then it is NOT "Willful Misconduct" to refuse to take the vaccine and the Nurse is eligible for Unemployment Compensation.

The second question, which we get to only if it is first determined that the demand that the employee take the vaccine was reasonable, does the Employee has a "necessitous and compelling reason" to say NO? If the reason she gave is found to be "necessitous and compelling" then she wins Unemployment Compensation.

Please note, the above is harder then it sounds. Unemployment Compensation Hearing Officers are noted for being pro Employer. i.e tends to find most demands by employers reasonable, and finds most reasons employees give to NOT following those demand NOT "necessitous and compelling".

On the other hand, they are KNOWN side affects of taking such a Vaccine. I once took one in the 1980s that left be shriving in a goose down sleeping bag (I was on maneuvers the day I was given the Vaccine). It was NOT the cold temperature it was the vaccine (and that shot many others in my unit reported the same side affect). They are problems with these Vaccines and that may be enough for an Unemployment Hearing Officer to rule the Nurse did have a "necessitous and compelling" to refuse to take the vaccine.

Given that she is 61 years of age, she can retire on Social Security at age 62 (But at a reduce level due to the early retirement). If she wins her Unemployment, which has been extended she may be on unemployment for up to two year, which is long after she turns 62. If she loses her unemployment, she has no income until she turns 62 and then she can get on Social Security. Thus she is the right age to fight her employer over this issue (Was this a reasonable demand by her employer AND is her fears of reaction to the Vaccine justify her refusal to take the Vaccine).

Just a comment, that this is only the start of this dispute, it will linger for another six months or so.

Reading the article in more detail, I notice the following sentence:

That means 1,300 employees did not comply, but only eight were fired

In unemployment compensation cases, that can be a fatal flaw against the Employer. It is NOT reasonable to have some employers terminated FOR not following a policy, while others are retained who also violated that policy. If this occurred the Employer has to answer to why the difference in treatment? If the response is NOT satisfactory, then the Employee win Unemployment Compensation for she then did NOT commit "Willful Misconduct" for the actions of the Employer in NOT terminating the other employees shows that the conduct was NOT "Willful Misconduct" (Double negatives are common in Unemployment Compensation decisions).

This can also be grounds for an age discrimination claim, if the other 1300 NOT fired employees tend to be younger then the nurses fired. It may be an sex discrimination if most of the people NOT fired were males. Such a case may take years to go through the courts, unlike Unemployment Compensation cases which tend to be resolved within 3-6 months (The courts know, when it comes to Unemployment Compensation it is better to get it TODAY, then two years from Today, thus expedited handling of these cases are routine)