The federal government's new guidelines for employers issuing Records of Employment ("ROEs") during the COVID-19 pandemic offer support for mandatory vaccination policies in the workplace. In a previous post, we looked at how mandatory vaccination policies intersect with applicable laws, human rights legislation, and the Canadian Charter of Rights and Freedoms, and concluded that carefully drafted policies are reasonable and enforceable. The new ROE guidelines support this conclusion by allowing employers to list non-compliance with a mandatory COVID-19 policy as a reason for issuing an ROE.
Reasons for an ROE
When filling out an ROE, employers must indicate the reason for an employee's leave or the reason for issuing the ROE. The new directions provide guidance on which reason codes to use when dealing with COVID-related absences, suspensions, or terminations.
If an employee cannot work due to a refusal to comply with a mandatory vaccination policy, employers can mark the reason for issuing the ROE as either "quit" or "leave of absence." Employers can use the code "dismissal" if they suspend or terminate an employee for non-compliance.
An employer may be contacted by Employment and Social Development Canada to ensure that these codes are being used appropriately. Questions an employer may be asked include:
- Was the mandatory vaccination policy clearly communicated to all employees?
- Were employees aware they could be terminated for non-compliance?
- Was the policy reasonable in the workplace setting and context?
- Did the policy allow for exemptions?
These questions emphasize the importance of well-drafted and clearly communicated policies. They also remind employers that some employees may be exempt from vaccine requirements because of protected grounds under human rights legislation. However, the new ROE directives also demonstrate support for mandatory vaccination policies and employers right to enforce them.
ROEs can be submitted electronically to Service Canada or by mail. For general information about ROEs and further instructions, see the Government of Canada's guide.
Mandatory vaccination policies must be drafted carefully, taking into account the nature of your workplace and industry, as well as privacy and human rights considerations. If you would like assistance preparing a mandatory vaccination policy for your workplace, please contact Ryley Mennie, Lou Poskitt, or Connor Levy from our Workplace Law Group.
Employers may have additional questions about how to implement a mandatory vaccination policy in the workplace. We have answered some basic questions such as whether employers can ask for proof of vaccinations and if job applicants have been vaccinated here and also created an FAQ sheet to help you out.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.