Service Canada has updated its website to include guidance for employers issuing a Record of Employment for any employee who refuses to comply with a mandatory vaccination policy which will, in turn, affect the employee’s right to collect Employment Insurance (“EI”) benefits in the event that their employment is terminated.
The guidance does not outright state that EI claims will be denied to those individuals whose employment has been terminated for refusing to comply with a mandatory vaccination policy but the language leaves little doubt this is the intention.
The guidance states:
When the employee doesn’t report to work because they refuse to comply with your mandatory COVID-19 vaccination policy, use code E (quit) or code N (leave of absence).
When you suspend or terminate an employee for not complying with your mandatory COVID-19 vaccination policy, use code M (dismissal).
If you use these codes, we may contact you to determine:
- if you had adopted and clearly communicated to all employees a mandatory COVID-19 vaccination policy
- if the employees were informed that failure to comply with the policy would result in loss of employment
- if the application of the policy to the employee was reasonable within the workplace context
- if there were any exemptions for refusing to comply with the policy
The source can be found at the following link:
It may be inferred from the above language that the government has no intention of paying EI benefits if it can be concluded that the reason for termination was the refusal to comply with an employer’s mandatory vaccination policy. The Employment Insurance Act provides for various levels of appeal through the Social Security Tribunal (“SST) but it is not yet clear how the SST will resolve these matters.
There is no doubt, however, that an employee’s inability to access EI benefits may cause further disruption to his/her earnings. Generally, employees are not entitled to EI benefits if it is found that the employee was responsible for the termination of the employment relationship whether it is because they resigned or his/her own misconduct. It appears that Service Canada is taking the position that refusing to comply with a mandatory vaccination policy is grounds for just cause.
We at Lecker & Associates take the position that any employer who terminates an employee as a result of their refusal to comply with a mandatory vaccination policy must do so on a without cause basis, and that employee may be entitled to termination pay and EI benefits (if applicable). If you find yourself in a position where your employment has been terminated and your EI benefits application has been denied as a result of your refusal to comply with a mandatory vaccination policy, please contact us right away.
