Canadian employers should be aware that Employment and Social Development Canada ("ESDC") issued new guidance on coding of Records of Employment ("ROE") for employees whose employment ends after failing to comply with a mandatory vaccination policy in the workplace.

Canada's Employment Insurance ("EI") regime provides temporary income support to unemployed workers. Employees are not eligible for EI benefits, however, if they voluntarily quit or are terminated with cause.

Under the new guidance, employers should indicate if an employee quit (code E) or took a leave of absence (code N) on their ROE if the employee does not report to work because they refuse to comply with a mandatory COVID-19 vaccination policy. If an employer terminates an employee for not complying with its mandatory COVID-19 vaccination policy, the employer should use code M (dismissal).

This supports the view that a failure to comply with a vaccination policy without a valid exemption (i.e. a medical or other bona fide human rights exemption) constitutes willful misconduct, and as such, it is suspected that such employees could be denied EI benefits if they quit or are terminated on this basis.

If an employer uses one of these codes, ESDC may reach out to determine the following:

  1. Has the employer adopted and clearly communicated to all employees a mandatory COVID-19 vaccination policy?
  2. Were employees informed that failure to comply with the policy would result in loss of employment?
  3. Is the application of the policy to the employee reasonable within the workplace context?
  4. Are there any exemptions for refusing to comply with the policy?

If you are an employer and are unsure what policies and practices will stand up to scrutiny by the ESDC, you should contact a lawyer. Experienced counsel can assist in drafting workplace policies, exemptions, and advise on strategies for managing vaccine non-compliance during this challenging transition back into the workplace.

Employers should be cautiously optimistic. However, this guidance may represent a growing consensus that mandatory vaccination policies can stand up to claims of discrimination or constructive dismissal.

The author would like to thank Ben Felsher, articling student, for his assistance in preparing this piece.

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