Employee’s Refusal to Vaccinate in Violation of Employer’s Policy Resulting in Discharge Not Disqualifying For Purposes of Unemployment Where Employee’s State of Mind Established Sincerity of Her Religious Belief Supporting Her Objection

By:      Gerald D. Borovick

The Massachusetts Supreme Judicial Court recently decided an unemployment “discharge case” involving an employer-policy mandating COVID vaccination.[1]  The case is helpful in illustrating that in certain cases, a knowing violation of an employer’s reasonable rule and deliberate disregard of the employer’s interest may not result in a termination from employment resulting in disqualification for receipt of unemployment insurance (“UI”) benefits.  It highlights the importance of knowing all of the elements, including the employee’s state of mind needed to establish a disqualifying discharge where an employer intends to contest the claim.

The issue in Fallon was whether an employee that requested a religious accommodation to exempt herself from the employer’s policy requiring vaccination for COVID-19 which the employer denied and then discharged her, disqualified her from UI on the basis that the reason for termination was due to deliberate misconduct in willful disregard of the employer’s interest or a knowing violation of a reasonable and uniformly enforced rule or policy within the meaning of G. L. c. 151A, § 25(e)(2) (“§ 25(e)(2)”).

The SJC holds that the employee’s violation of the employer’s policy did not result from a choice for which the Legislature intended to withhold unemployment benefits.

Employer’s Burden in a Discharge Case

In a “discharge case,” the grounds for disqualification in § 25(e)(2) are considered to be exceptions or defenses to an eligible employee’s right to benefits, and the burdens of production and persuasion rest with the employer.  This “production and persuasion” burden includes substantial and credible evidence by which the agency can make subsidiary findings regarding the employee’s state of mind at the time of the act or omission resulting in the separation.

25(e)(2) Elements

Under the first clause – the “deliberate misconduct” clause of § 25(e)(2) – an employee is disqualified from UI if he or she was discharged because of intentional conduct or inaction which the employee knew was contrary to the employer’s interest.  In turn, to determine whether the employee’s state of mind demonstrates willful disregard of the employer’s interest, the factfinder must take into account the worker’s knowledge of the employer’s expectation, the reasonableness of that expectation and the presence of any mitigating factors.

The second clause of § 25(e)(2) – the “knowing violation” clause – disqualifies an employee who is discharged due to a knowing violation of a reasonable and uniformly enforced rule or policy of the employer.  Again, state of mind is key: a discharged employee is not disqualified unless it can be shown that the employee, at the time of the act, was consciously aware that the consequence of the act being committed was a violation of an employer’s reasonable rule or policy.

And under the second clause, as with the first clause of § 25(e)(2), mitigating circumstances may serve as some indication of an employee’s state of mind, and may aid the factfinder in determining whether a knowing violation has occurred.

A claimant is disqualified from UI if the employer meets its burden under either clause of § 25(e)(2).

Facts in Fallon

Claimant worked as a home health aide in the  employer’s “ElderCare” program for long-term, personal care to elderly patients.

In October 2021, the Executive Office of Health and Human Services notified organizations that provided integrated care plans in the Commonwealth, including the employer, that due to COVID pandemic, they were required to have their employees vaccinated against COVID-19.

In response, the employer adopted a policy requiring all employees who work at the ElderCare program and provide direct care or have physical contact or proximity with patients to provide proof of vaccination.  The policy provided for medical and religious exemptions but conditioned them on “the individual’s job [being] such that the employer can offer a reasonable accommodation to avoid risk of contracting or transmitting COVID-19 on the job,” as well as the employee’s compliance with the exemption application process.

The policy apparently stated that an employee’s failure to get vaccinated or an exemption would be treated as a resignation.

Claimant applied for a religious exemption.  Her application included a letter from the president of her congregation confirming the sincerity of her religious objection.  The claimant and employer then undertook an interactive process which apparently involved ascertaining whether an accommodation could be made to permit her to continue working despite her unvaccinated status.

Claimant offered to wear full PPE, to frequently test and to comply with alternative accommodations proposed by the employer.  Her employer determined that without the vaccination, no accommodation could be made to protect the patients.  The employer denied her religious exemption request and was discharged.

The local office denied her application for UI, which was overturned after a hearing.  Her qualification for UI was affirmed by the Board of Review and by the District Court.  The employer appealed, and the SJC took the case – not a typical appellate route.

The employer argued that the claimant’s refusal to get vaccinated under these circumstances was in knowing violation of the employer’s reasonable policy and in willful disregard of the employer’s interest in keeping its vulnerable patient population healthy and thus disqualifying for UI.

Noting the ‘heavy burden” an appealing party has from a final agency decision such as in this case and in particular for UI claims; specifically that the statute is to be “construed liberally in aid of its purpose, which purpose is to lighten the burden which now falls on the unemployed worker and his [or her] family[,]” the SJC concludes the claimant’s action in refusing to vaccinate by the deadline, while amounted to noncompliance with the employer’s vaccination policy, was based on her sincere religious beliefs.  Such evidence of the employee’s state of mind is “the key mitigating factor” under either prong of 25(e)(2) resulting in qualifying for benefits.

Her “awareness” of the policy before and during her noncompliance “did not present [her] with a meaningful choice regarding [compliance with the employer policy] given her religious beliefs.”


This decision illustrates the difficult position an employer can be in when, as was the case here, the workplace standard was because of a State-imposed mandate.

As the SJC notes, the employer’s policy was not unreasonable.

Even where the policy had built-in procedures by which employees could request medical or religious exemptions, the employer’s argument that its inability to accommodate the claimant’s requested exemption because it reasonably concluded it would put vulnerable patients at risk “misse[d] the mark.” “Fallon’s inability to provide a reasonable accommodation in these circumstances is not dispositive of the vaccination mandate’s reasonableness, as reasonable accommodations may not be available in every line of work.”[2]

In concluding that the claimant’s discharge was not disqualifying, the SJC observes while the violation of a work rule may well justify the discharge of an employee, such a violation does not necessarily amount to misconduct for unemployment compensation purposes.

Again, when it comes to whether or not the separation from employment is disqualifying for purposes of UI in the Commonwealth, the agency and courts are guided by the Legislature’s stated objective:  The unemployment compensation law is to be “construed liberally in aid of its purpose, which purpose is to lighten the burden which now falls on the unemployed worker and his [or her] family.”

Dated: Sudbury, MA

March 5, 2024

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[1] Fallon Community Health Plan, Inc. v. Acting Director of the Department of Unemployment Assistance, __ Mass. __ (2024).

[2]   Id. n. 8 (emphasis, citing G. L. c. 151B, § 4 (1A) (employers are not required to provide accommodations that would impose ‘undue hardship,’ such as ‘unduly’ compromising ‘the health or safety of the public’ or ‘the orderly transaction of business’).