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.1 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.2 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.

Footnotes

1. https://www.canada.ca/en/employment-social-development/programs/ei/ei-list/ei-roe/notice-covid-19.html

2. For the full list of assigned codes, visit the government of Canada's webpage here: https://www.canada.ca/en/employment-social-development/programs/ei/ei-list/reports/roe-guide/instructions.html#block16

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