The Government of Canada has released new guidance on how employers should characterize interruptions in earnings related to non-compliance with mandatory vaccination policies.
On October 15, 2021 the website providing directions employers with directions on how to complete a Record of Employment (ROE) was modified to include the following instructions:
COVID-19 vaccination
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:
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- 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
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All three of the codes recommended above (E, N and M) are typically associated with scenarios where employees are not entitled to employment insurance. This would align with the federal governments own hard line of mandatory vaccination for employees in the federal public sector.
In terms of how employers should respond to inquiries from Service Canada about the basis for the interruption in earnings, we generally recommend that employers not be overly concerned about whether employees are denied or approved for Employment Insurance and provide only the minimum information requested. In practice, Service Canada’s decision to approve or deny benefits has little to no bearing on whether a vaccination policy and any associated implications for employees is lawful, reasonable or justified. Indeed, actively arguing against the approval of benefits for an employee held out of work could be held against an employer in any related litigation.
PooranLaw will continue to monitor legal developments related to vaccination policies. In the meantime, if you require legal assistance, we encourage you to reach out to your regular PooranLaw lawyer, or any member of our team.
Note: This article provides general information only and does not constitute, and should not be relied upon as, legal advice or opinion. PooranLaw Professional Corporation holds the copyright to this article and the article and its contents may not be copied or reproduced in any form, in whole or in part, without the express permission of PooranLaw Professional Corporation.
