October 22, 2021
Workers who lose their job over a refusal to vaccinate against COVID-19 may not be eligible for employment insurance benefits, according to updated guidelines from the federal government.
Employment and Social Development Canada has issued a notice to employers enforcing vaccine mandates to help them fill out records of employment, a document needed to apply for E.I. benefits.
The department said if an employee doesn’t report to work or is suspended or terminated for refusing to comply with a vaccine mandate, the employer should indicate that they quit, took a leave of absence or were dismissed – potentially disqualifying them from E.I.
The notice also lays out multiple factors that could be considered, including whether the vaccine policy was clearly communicated, if it was reasonable within the workplace context and potential exemptions.
Employment lawyer Adam Savaglio says the updated guidelines mean workers who refuse to vaccinate and cannot be accommodated by their workplace may not have employment insurance benefits to fall back on.
Still, the assessment of employment insurance applications will likely be done on a case-by-case basis, he said.
“The key question is are you entitled to benefit from employment insurance if you refuse to vaccinate,” said Savaglio, a partner with Scarfone Hawkins LLP in Hamilton, Ont.
“In certain circumstances, I think they’re going to take a contextual approach looking at all the factors of that individual’s employment, including whether it was a necessary condition of their employment contract that they be vaccinated,” he said.
“Also, is it a reward to that individual to now provide them insurance benefits based on a preference or choice or a failure to meet a fundamental term of their employment.”
Savaglio added: “There will certainly be circumstances where employees will not be entitled to employment insurance.”