The HR Outlook for Vaccine Mandates - Unemployment

Announcer (00:00):
You're listening to the Workforce Wise podcast from Equifax, where we help you better manage your workforce by saving time, reducing risk, and focusing on increasing profits.

Jason Fry (00:16):
Hello, and welcome to the Workforce Wise podcast. I'm your host, Jason Fry. Today, we're going to be talking about a really interesting subject that's in the front of a lot of employers' minds. And it seems like every day, there's another discussion, email, or conversation about COVID vaccinations in the workplace. With so many employers beginning to mandate those vaccines for their in-person staff, it's important to understand not only how those mandates will work for your employees, but also how they may impact many of your different standard HR functions. Equifax Workforce Solutions is going to be doing several deep dives with our product experts to discuss how vaccine mandates may impact your HR operations. Today, we'll be discussing how vaccine mandates may impact unemployment claims. Dave Caldwell is with us today. He'll be walking us through key points for employers to better understand possible ramifications of vaccine mandates for your unemployment claims program. Dave's our product manager for UC service. He's responsible for the strategic development of our UC offerings. Welcome, Dave.

Dave Caldwell (01:23):
Hey. Thanks a lot, Jason. Glad to be here.

Jason Fry (01:26):
So Dave, let's start with what you're hearing from our clients. How many are planning on mandating vaccines? What are you hearing? What are they saying? What's the general trends that you're seeing?

Dave Caldwell (01:40):
Yeah. This is a really interesting situation when it comes to these vaccines. It's top of mind for a lot of employers. And I would say the main discussion ranges from, they've already had to implement some level of a vaccine mandate, or they are heavily considering it at top levels of the organization. So everywhere from the CEO down is thinking about this. It's very top of mind because the initial guidance from the federal government, of course, is that this is something that an employer with more than 100 employees should implement. I should say, in certain venues, whether that's state, county, or even in certain municipalities, it's already been mandated in some cases for certain industries. So for example, in the healthcare industry or in folks working with senior care. This has already come to fore. And what they've had to do is deal with it on a venue by venue basis.

Dave Caldwell (02:42):
And so you can imagine, there's a lot of interest at a larger organizational level to maybe deal with this more broadly. That might be a simpler approach to this, and I think that's how a lot of companies are at least considering this issue right now. And I should say, I'm interested in primarily, of course, the unemployment cost management perspective of this issue, but it does cross into other areas. So for example, we're primarily interested in whether the company implements the policy to existing employees. It's also important that a company implement that at the outset for their talent acquisition process, and that translates downstream. So it's a larger, it's a much larger issue. But at least for today, we'll be talking mainly about the unemployment impact of such a vaccine mandate.

Jason Fry (03:37):
Yeah. And I would imagine there are a ton of different ways that a vaccine mandate, your employment, your general operating can change based off of what you decide to do with employees if they decide not to get vaccinated. So if the company does decide to mandate the vaccines and they let people go because they don't meet the mandate or meet the criteria to be acceptable under the mandate, do they have to pay unemployment for anybody that they let go because of that situation?

Dave Caldwell (04:12):
Yeah. That's the magic question. And I will tell you, that's the secondary question in everyone's mind, especially when it comes to unemployment, is will I have to pay for this? We all know that throughout the COVID pandemic and all of the benefits that were amassed during that period, depending on the state, employers either had to pay for those charges or they didn't. Ultimately, they're all having to pay for it through refilling the state accounts, helping to replenish those funds. So if there's one thing they're looking for in this issue, it's predictability.

Dave Caldwell (04:50):
When it comes to unemployment benefits, employers are very accustomed to... There's a lot of ways of looking at an unemployment issue, of course. There's personal issues with a specific separation, there's more policy, precedent-type issues when it comes to certain policies that are important to the organization. This is one that is crossing into areas, I like to draw parallels with certifications in certain industries and things that are mandated for the employer, not by the employer, if that makes sense. So what they're wanting to come out of this from an unemployment perspective, or what employers are searching for is really predictability and consistency. And unfortunately, I think this is where we all walk into this together, that we have to understand that there will be a certain amount of variability in this by state. And I would argue at least from the outset, there's enough newness to this that there could be variability between adjudicators within a specific state.

Dave Caldwell (05:55):
So I think the important thing to do is step back to it, and say, "Unemployment is always governed by some key principles of the employee must be unemployed through no fault of their own. They mustn't have acted in some way that's in willful or intentional disregard for the employer's best interest. And if they leave, they have to have left for such a reason that it can be attributed to the employer." And there's another. Another key factor is they must also then be able, available, and actively seeking work, which, of course, if this vaccine mandate scales to their industry and they choose not to get that vaccine, the more employers that implement such a vaccine mandate, the more likely they're taking themselves out of that market.

Dave Caldwell (06:42):
So the key for unemployment is to understand, they're always going to be adjudicating on the basis of current rule, policy, precedent, and statute or law for that state. Each one will be adjudicated very individually, but it's also very important that we work with the employer to make sure all of the details are provided. The two basic scenarios are, and you sort of alluded to that, which is somebody doesn't meet the vaccine mandate by a certain date, and they're therefore terminated. That's one particular approach to this from an employee perspective, is to wait this out.

Dave Caldwell (07:22):
Another viable angle is they leave ahead of the date. They find out about the vaccine mandate, determined this isn't the right employer for them based on that newly implemented mandate, and so they voluntarily separate from the employer ahead of that. That's a separate type of employee separation. So we need to make sure working with employers that... And you as the employer, need to make sure that you are reporting all of that information down to the very specifics around that employee, not just your policy, but the way that employee has reacted to your policy that has brought them to the point of separation. So the state can make a complete difference.

Jason Fry (08:10):
So there are differences in how they may be terminated. So I think the first one that I initially asked about was if the employer terminates the employee. But can you talk a little bit more about what happens specifically if the employee looks at the mandate and says, "This isn't something I want to do," and they voluntarily leave the employer?

Dave Caldwell (08:30):
Yeah. Absolutely. Because it's important, again, to come back... You have to come back to the basics of unemployment, which is the employee then has to show that they voluntarily left with no choice, they were given no choice but to leave their employment. That's the condition in most states. It has to be personally compelling or it has to be good cause attributable to the employer. And again, I'm speaking in very broad generalizations because every state's law and regulation and rule is slightly different, and even precedent in their state. It's all very different. So it's very important that we approach those as a voluntary quit, we approach that from the perspective that the employee now has the burden of proof to show that they left for good reason. And what we have to then do is make sure the state is aware, this is a voluntary quit, the individual could have continued employment had they complied with the mandate itself. And by not doing so and choosing to leave, that was of their own volition. So it's a completely voluntary separation.

Dave Caldwell (09:35):
And again, really important that we draw those comparisons. And really important from an employer perspective because, again, this determines their chargeability for that claim. In normal times, a claim is chargeable if that employee was discharged without misconduct, or they voluntarily left with compelling reasons, or some reason attributable to the employer. And from an employer's perspective, it must always be about chargeability. Avoiding an unnecessary unemployment charge is avoiding charges to your account, which then if you're a tax paying employer, results in downstream effect to your tax rate. And that's what we're ultimately trying to influence here, is to make sure that if these are viewed as non-chargeable to the employer under specific circumstances, we need to make sure we're giving the detail related to that to avoid those charges.

Announcer (10:34):
To get even more out of today's episode, make sure you get your free tools, like webinars, e-books, videos, and more at equifax.com/wise.

Jason Fry (10:46):
Yeah. And I know that you've mentioned a couple different times, differences between states and maybe even differences between adjudicators in individual states. So what are we hearing from the states that we're working with? Are they sending information out? What's your gut tell you about how states are going to rule on these types of separations?

Dave Caldwell (11:09):
Yeah. I really think that in most cases, the states are looking at this at a higher level, either, as I mentioned, legislatively or from a regulation or statute perspective. I think they are struggling with this as well as the employer. So if there's one consolation, it's that I don't know that this is going to be settled for either party, any party, the employee, the employer, or the state anytime real soon. I think everyone's going to be looked at very individually. I think early indications are that it is good. It is favorable to the employer if we provide that level of detail that shows that this wasn't something that an employer just arbitrarily decided to implement.

Dave Caldwell (11:58):
This is coming as a result of, in some cases, as I mentioned, specific industries. Healthcare, nursing, senior care, and so forth. In other cases, it's because of the government contracts that companies hold. And so if government, if the federal government has indicated that this vaccine must be mandated for anyone who works with or in conjunction with a federal government contract, which has been the early indication, that's going to force the employer to think about this more deeply. And what it is is basically a requirement on the employer.

Dave Caldwell (12:33):
And again, I harken back to certifications, for example, in healthcare. If someone fails to maintain a certification and therefore has to be let go or they voluntarily leave because they don't want to get a certification, that certification's not something arbitrarily required by the employer. It's required by their industry. It's a state statute or a federal-level statute that they're complying with. And I think it's important, again, that we draw that out. If you are an employer who has to meet certain requirements because of your industry or your location, again, state, county, municipality, if there's a government requirement for you, we need to make sure that the state adjudicator working this case knows about that, that we make that clear. This wasn't arbitrary. It was a requirement and here's why it was required.

Jason Fry (13:26):
So you've talked a lot about what to show, or maybe what type of documentation, or making sure that you keep documentation. So what can organizations do to make sure that they are doing everything they can to have all of that ready to go in case they have to respond to an unemployment claim? So what should they be looking for? And what are some best practices that they can implement today to make sure that they're ready for whatever happens tomorrow?

Dave Caldwell (13:55):
Yeah. It's a great question. And it's something that everyone should be doing with equal levels of diligence at this point. If you do implement a policy around vaccine mandates, you have to clearly articulate that policy to your employee population. So that's step number one. Develop your policy. That policy is always, of course, going to look and feel different by employer, but that policy needs to be very clearly communicated to the employment population. And that means implementing it, again, into company policy, more officially get signature, make sure that your employees are aware of that policy, have seen it and have signed off that they've seen it. Those kinds of things are very... Again, if you go back to the grassroots of unemployment, that's very important from an employer perspective, to show that a policy is consistently implemented and consistently enforced.

Dave Caldwell (14:49):
So make sure that's clear, if there are exceptions to that policy. I know there have been discussions of exceptions around health and religious preferences or requirements. And that too then needs to be clearly articulated at least as an exception process. If there's denial of that exception, that needs to be clearly documented for the potential unemployment case that might arise or any other venue, I might add. You'll need to make sure that you have that clearly documented.

Dave Caldwell (15:23):
So the real key is to make sure that you have that clear and consistent policy, you get acknowledgement from the employee, you have the proper identification of what exactly happened. Did they leave in advance of the deadline for that policy implementation or did they leave as a result of? Meaning it's more of a termination. And then all of that documentation needs to be submitted to the state, or if you're working with us, to us so that we can submit that to the state.

Dave Caldwell (15:54):
So again, lots and lots of details, every aspect of this, again, from the standard perspective of unemployment. We're either trying to show that the employee voluntarily left on their own without compelling reason, that the vaccine was available to them, but they chose to leave anyway. Or that they were... We had no option, but to terminate them at the point that we communicated it must be done. And we need to make sure and communicate that very effectively and very clearly to the state so they can really make an appropriate determination on this.

Jason Fry (16:37):
So let's say we get all the way through and benefits are awarded to the former employee. I know in several situations, we recommend appealing those cases for the employer. What are your thoughts around the appellate process for these types of cases? Is it something an employer should think about? Something they should be aware of? And what should they do to prepare if they're going to appeal one of these cases?

Dave Caldwell (17:03):
Yeah. I think from an employer's perspective, it's due diligence right now to pursue those cases. We have to view it that way because it's unknown to a large extent on a venue by venue basis. I think if the employer has all of the appropriate documentation, they've shown that it's something that they were, of course, compelled to apply to their employee population, I think we have to pursue that. And the reason I say that... Or the employer has to pursue that on their own. I think the reason for that, again, is because that's the way precedent is built. And if the employer's willing to spend the time and the resources, which are significant in that when you create an appeal, takes time to write that appeal, at least with some level of intelligence, you have to put some thought into that, that appeal. And then, of course, at the hearing, that's not a process that is without resource expenses.

Dave Caldwell (18:11):
But if you're willing to do that, it's worth doing it at this point. Because you are building a precedent that shows number one, that you have the detail around this, you have the documentation, but also that it's important to the employer. And so the more we can challenge those, the more we'll build up more information about how successful we can be on a venue by venue basis. And again, some states are likely to be... Less likely to disqualify on this than others. In other states, there may be no disqualification, but there may be no charge to the employer. There's a lot of scenarios that we need to build. And I think by pursuing these cases, especially in cases of high liability to the employer, long-term employment, those sorts of things, it's worth exploring that at the appellate level.

Jason Fry (19:04):
Yeah. And honestly, I think that there's going to be a lot of interesting things that we're going to see, especially over the next six months, 12 months when it comes to how vaccine mandates, and unemployment, the claims process inner work and work together. But Dave, this is actually some really great information. I'm sure our listeners have really enjoyed you being a guest on the podcast today. And thank you for taking time to share a lot of your knowledge with us. And for the listeners, we hope that you enjoyed today's discussion, and we hope you're walking away with some best practices that you can adopt to your organization. Also, be on the lookout for more vaccine mandate podcasts to learn how those vaccine mandates may impact your HR operations.

Announcer (19:46):
Thanks for listening. If you liked what you heard today, be sure to subscribe to the Workforce Wise podcast. And don't forget to download your free tools at equifax.com/wise. While you're there, check out our other episodes and sign up for our live tech demo to see our solutions in action. And to keep our lawyers happy, you should know the information provided on the Workforce Wise podcast is intended as general guidance and not intended to give a specific tax or legal advice. For tax or legal information pertaining to your company and its specific facts and needs, please consult your own tax advisor or legal counsel. The views expressed are those of the discussion leaders and do not necessarily reflect official positions of Equifax. Investor analysts should direct inquiries using the contact us box on the investor relations section at equifax.com.