A Lone Bureaucrat Denied Due Process And Unemployment Benefits To Massachusetts’ Unvaxxed
Though they now publicly ask for amnesty, many policymakers who were wrong about all things Covid-19 still seem more resentful than sorry. Many are still busily punishing their citizens for the crime of turning out to be right. In Massachusetts, the state government is still denying unemployment assistance to all workers fired from any job, government or private, for refusing to get the Covid-19 vaccine and boosters. Even vaccinated workers who refused to get boosters and workers who refused the vaccine for legitimate religious or medical reasons are being denied.
My law office represents some of these Massachusetts workers. We have discovered that the decision to punish them for refusing the jab by cutting them out of the state’s social safety net was not made by the state’s legislature, governor, or high court. It was made by one Emmy Patronick, a mid-level bureaucrat serving in the state’s Executive Office of Labor and Workforce Development as the director of policy and performance for the state’s Department of Unemployment Assistance (DUA). In an Oct. 14, 2021, “interoffice memorandum” to all DUA unemployment claim adjudicators, Patronick simply overruled federal and state employment laws with a new policy more to her liking:
The [unemployment] claimant will be ineligible for benefits unless the facts establish that the claimant’s refusal of vaccination was due to a substantiated medical condition that prevented vaccination or a sincerely held religious belief, and no opportunity to request or apply for reasonable accommodation was offered by the employer. If an employer’s vaccine policy permitted such requests and a claimant’s request for an exemption or accommodation was denied, Adjudicators should not “second guess” the employer’s decision.
In other words, as long as a Massachusetts employer offers medical or religious exemptions, it can fire any worker who genuinely needs such an exemption after first going through the charade of pretending to consider granting one. According to Patronick’s orders, unemployment claim adjudicators are to ensure that no inquiry into the employer’s exemption policies will be made on the worker’s behalf:
Adjudicators should not ask to review medical documentation that was already reviewed by the employer and found to be insufficient to support a medical exemption. Similarly, where an employer — through a review of documentation or an interview, or some other reasonable process — has found that an employee’s professed religious belief either is not sincerely held or does not prevent the employee from being vaccinated, an Adjudicator should not attempt to overturn that decision through paper fact finding. Nor should Adjudicators permit employees to submit documentation or raise arguments that were not made at the time of the discharge.
State and federal laws would beg to differ with all of this bureaucratic nonsense. At the most basic level of due process, an adjudicator must be impartial, she must hear arguments from both parties, and she must second-guess both of them equally. Massachusetts unemployment claims adjudicators cannot be impartial if they refuse to “second guess” employers’ self-serving claims about why workers were fired; or if they refuse to let workers “raise arguments” that employers can rebut simply by denying that the arguments were raised at the time of firing.
Patronick’s bureaucratic memo also illegally exempts Massachusetts employers from conforming their vaccine policies with the reasonable accommodation provisions of federal laws such as Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA). According to Patronick’s instructions to her subordinates, they are too ignorant to understand those laws anyway:
Importantly, DUA is not [an equal employment opportunity agency]. Our Adjudicators are not sufficiently trained or authorized to make determinations regarding an employer’s compliance with the reasonable accommodation provisions of the ADA, Title VII of the Civil Rights Act of 1964, [state religious and disability rights laws], or any other EEO [equal employment opportunity] considerations or legal requirements.
Employers Take Advantage
Massachusetts employers have gotten Patronick’s memo. In November 2021, soon after the memo was issued, my law practice began hearing from workers who were fired for refusing to get vaccinated or boosted. Their termination letters followed Patronick’s script: The employer always offers the exemptions, but the worker never qualifies for one.
I took on a few such workers as clients, and their cases since have wound slowly all the way through the obstructed bowels of the Massachusetts unemployment bureaucracy to be heard by its adjudicators. As an American lawyer, for me, these hearings have been surreal. The game is rigged. Patronick’s policy constrains the adjudicators presiding over these hearings to one possible decision only: deny unemployment assistance to my clients.
In cases where the employer does not show up to the hearing, the adjudicators rush to take over arguing against me for the employer, and have delved deeply into my clients’ religious beliefs, like latter-day bureaucratic Torquemadas, to identify some heresy that disqualifies my clients. In cases where the employer does show up, the adjudicators play defense when I cross-examine the employer’s representative. Last week, as I was cornering a human resources department lady into a lie, our adjudicator shut her eyes and, like a toddler, started repeatedly yelling, “Stop it!”
The outcome is always the same: My client’s refusal to vaccinate is deemed “a knowing violation of a reasonable and uniformly enforced rule” or “deliberate misconduct in willful disregard of the employing unit’s interest.” No unemployment for my client, and one fewer unemployed worker on the state’s assistance rolls.
Soviet-Style Ruling Class
Although strange to experience in America, the rigged game seems familiar to me as a child of the intellectually bankrupt 1980s Soviet Union. However necessary mass Covid vaccination may have seemed in 2021, now it is broadly understood that the benefits of that vaccine and naturally acquired immunity are indistinguishable. By now, most people have acquired one or both.
The only remaining reasons to still punish people who resisted their employers’ vaccine requirements are similar to those that motivated the actions of the Soviet ruling class as its workers’ paradise stagnated: the fear of losing political power by admitting to having been wrong, the desire to avoid having to compensate those harmed as a consequence, and plain old resentment over someone else having been right.
Ilya Feoktistov is a Boston-based civil rights attorney, representing victims of cancel culture and of the Covid-19 pandemic response. He grew up in Soviet Siberia and Nashville, Tennessee.
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