There have been clear indications that the Government of Canada does not want the Employment Insurance (EI) system to subsidize individuals who are terminated or put on leave due to a refusal to be vaccinated without medical or other valid reasons.
On October 21, 2021, Minister of Employment, Workforce Development and Disability Inclusion Carla Qualtrough indicated on CBC's Power& Politics that El policy is likely to be changed to preclude individuals who are terminated because of non-compliance with employer vaccine requirements. The interview signaled a hardening of government attitudes against the minority of Canadian workers who are not complying with employer vaccine requirements.
On October 15, 2021, the Government of Canada updated its bulletin to assist employers in issuing Records of Employment (ROE) documents during the COVID-19 pandemic, including when an employee's employment is disrupted due to non-compliance with a mandatory vaccination policy. The bulletin's specific guidance on vaccine refusals should be read in light of Minister Qualtrough's interview regarding what she anticipated government EI policy will be. Together, they are a strong signal that EI benefits will not be available for vaccine refusals that do not have a medical or other Human Rights justification.
Reasons for issuing ROE
Block 16 of an ROE indicates the reason why the employee is not working. There are codes assigned to the most common reasons for issuing an ROE. The Service Canada bulletin has clarified when the following codes are to be used in block 16 in the context of COVID-19:
- Code A (shortage of work) − to be used when the employee is no longer working because the business has decreased its operations or closed due to COVID-19.
- Code D (illness or injury) − to be used when the employee is sick or quarantined.
- Code E (quit) or Code N (leave of absence) – either of these codes may be used where the employee does not report to work because they are refusing to comply with the employer's mandatory COVID-19 vaccination policy.
- Code M (dismissal) – to be used when the employer suspends or terminates an employee for non-compliance with a mandatory COVID-19 policy.
Interestingly, where an employer uses either Codes E, N or M, Service Canada may contact the employer to inquire about the content and implementation of their COVID-19 policy. An employer may be asked whether:
- The mandatory COVID-19 policy was adopted and clearly communicated to all employees;
- The employees were informed that failure to comply with the policy would result in loss of employment;
- The application of the policy to the employee was reasonable within the employer's workplace context; and
- Whether there were any exemptions for refusing to comply with the policy.
Given this new guidance on ROE codes, employers can expect to be contacted by Service Canada if they suspend or terminate an employee relating to non-compliance with a workplace COVID-19 vaccination policy. Service Canada may then determine whether the terminated employee is entitled to Employment Insurance (EI). Generally, an employee terminated for cause is not entitled to EI.
Gowling WLG focus
Service Canada has provided additional clarification on how to code the reason for dismissal in the context of the continuing COVID-19 pandemic. Notably, the new guidance to employers on how to code an ROE for employees that have refused to comply with a mandatory vaccination policy suggests that Service Canada will be scrutinizing those employees' applications for EI benefits closely – and also that those applications could very well be denied.
Employers should be prepared to provide a copy of the COVID-19 policy and also the justification for that policy to Service Canada. Recommendations from local Medical Officers of Health, requests from Joint Health & Safety Committees, input from external safety consultants or a history of COVID-19 exposures in the workplace are all powerful evidence justifying vaccination policies.
Remember, an employer generally must issue the ROE within five days after an employee's last day of work. This is regardless of the reason the ROE is being issued, and whether or not an employee intends to apply for EI.
Service Canada's decision regarding the reason for the separation of employment and whether the employee is entitled to EI is based on the Employment Insurance Act and its Regulations. As such, a finding by Service Canada has no precedential impact on the legal determination of whether or not an employee was appropriately terminated for cause under the Employment Standards Act and under the common law.
For assistance in preparing and implementing a COVID-19 vaccination policy or questions about this article, please contact a member of Gowling WLG's Employment, Labour & Equalities group.