On October 15, 2021, the Government of Canada updated its advice regarding employment insurance (“EI”) information for employers as it relates to mandatory vaccination in the workplace against COVID-19. The update was provided to help employers issue records of employment (“ROEs”) for employees during the COVID-19 pandemic.
The Ministry of Employment and Social Development Canada (“Ministry”) provided new codes for employers to use in Block 16 to indicate the reason for an employee’s leave or separation from employment on a ROE (the “ROE Codes”). Under “Block 16- Reason for issuing this ROE”, the Ministry provided that:
- When the employee is no longer working because the business has decreased operations or closed due to COVID-19, employers should use code A (shortage of work); or
- When the employee is sick or quarantined, employers should use code D (illness or injury).[1]
The Ministry also provided guidance on how to code employees on a ROE who have not complied with a company’s mandatory COVID-19 vaccination policy. To this end, the Ministry advised:
- When the employee doesn’t report to work because they refuse to comply with a mandatory COVID-19 vaccination policy, employers should use code E (quit) or code N (leave of absence); or
- When an employer suspends or terminates an employee for not complying with their mandatory COVID-19 vaccination policy, employers should use code M (dismissal), (collectively, “COVID-19 ROE Codes”).[2]
The Ministry may also contact employers for follow up information if a submitted ROE contains the above COVID-19 ROE Codes. In such a circumstance, the Ministry will inquire if the employer:
- adopted and clearly communicated to all employees a mandatory COVID-19 vaccination policy;
- informed employees that failure to comply with the policy would result in loss of employment;
- applied the policy in a reasonable fashion within the workplace context; and
- allowed any exemptions for employees refusing to comply with the policy.[3]
The COVID-19 ROE Codes will not apply to those employees who are exempt from receiving a COVID-19 vaccine due to a protected human rights ground.
We note that in an interview on October 21, 2021, Minister Carla Qualtrough, Minister of Employment, Workforce Development and Disability Inclusion, stated that she was getting advice that if getting vaccinated is “a condition of employment that hasn’t been met and the employer [is] choosing to terminate someone for that reason, [then that] would make that person ineligible for EI”.[4]
Key Takeaways for Employers
The new COVID-19 ROE Codes suggest that an employee’s refusal to be vaccinated when vaccination is a condition of employment could result in a denial of EI benefits. The update also provides guidance regarding what information the Ministry will be looking for before making a determination that an employee is ineligible to receive benefits.
For assistance with drafting and implementing mandatory vaccination policies in your workplace or employment relations matters regarding vaccine compliance, please contact the author or your regular Fasken lawyer.
[1] Government of Canada, Minister of Employment and Social Development Canada, “EI Information for employers- COVID-19”, retrieved from: https://www.canada.ca/en/employment-social-development/programs/ei/ei-list/ei-roe/notice-covid-19.html.
[2] Ibid.
[3] Ibid.
[4]Richard Raycraft, “Don’t expect EI if you lose your job for not being vaccinated, minister says” Canadian Broadcasting Company, retrieved from: https://www.cbc.ca/news/politics/ei-vax-status-1.6220287. While claims will be adjudicated on a case-by-case basis, section 30(1) of the Employment Insurance Act states that “a claimant is disqualified from receiving any benefits if the claimant lost their employment because of their misconduct or voluntarily left their employment without just cause.”
