NE employees fired for rejecting employer vaccine mandate can claim jobless benefits

The Nebraska Department of Labor (NDOL) recently issued a guidance memorandum verifying unemployment benefit eligibility for employees fired for refusing to get a COVID-19 vaccination. The guidance, which was posted very quietly on the NDOL website in late November, is advisory in nature. Nevertheless, unless or until it’s amended, the memo is still binding on the agency (including its claims examiners and appeals tribunal) and administrative law judges. Let’s take a closer look to determine its full effect on employers in the state.

Definition of ‘misconduct’ is key

The guidance memo’s purpose was to provide individuals and Nebraska employers with an understanding of how the NDOL will interpret the definition of “misconduct” as applied by the Nebraska Employment Security Law (NESL) to determine a separated employee’s eligibility for unemployment compensation. In the state, it has become settled law that when employees are involuntarily terminated, they are eligible for jobless pay unless the reason for the discharge amounts to “misconduct,” which the NESL defines as behavior “not in the employer’s best interests.”

As a practical matter, employees discharged for unsatisfactory performance aren’t disqualified from receiving unemployment compensation benefits. Indeed, to constitute misconduct, there must be some clear violation of a critical employer interest, policy, or rule. Employees found to have engaged in gross, flagrant, willful, or unlawful misconduct receive a lengthier disqualification from eligibility for the benefits.

What new guidance says