On October 21, 2021, Employment Minister Carla Qualtrough announced that it is likely that people who lose their jobs for not complying with employer COVID-19 mandatory vaccine policies will not be eligible for employment insurance (EI). Where does this leave those who are unvaccinated and find themselves unemployed because of this? Do they have access to EI?
As an employment lawyer and a former EI adjudicator, I get many questions about EI eligibility. In my time at Service Canada I adjudicated over 9000 claims and I now help workers challenge denials. I have prepared answers to some FAQs below.
Q: I have been fired because of my decision not to be vaccinated and I was denied EI. I am also late into my pregnancy; will my maternity benefits also be denied?
A: These rules apply only to regular EI. These rules do not apply to “special benefits” which are a separate category of EI that includes sickness, maternity, parental, and compassionate care benefits. We do not expect that maternity leave benefits should be denied in this circumstance.
Q: What is the legal basis for denying my EI if I am fired for non-vaccination?
A: The current rules allow Service Canada to deny your EI claim if you lost your job because of your own “misconduct.” Misconduct is defined by the Courts as conduct that the EI claimant knew or ought to have known would impair the performance of the duties owed to their employer and that, as a result, dismissal was a real possibility. I like to put in simpler terms: misconduct is something that you did and that you either knew or ought to have known could get you fired. Refusing to comply with a mandatory vaccine policy could be “misconduct”.
Q: What does Service Canada need to find to conclude that my refusal to comply with a mandatory vaccination policy amounts to misconduct?
A: In order find misconduct (and thereby deny you EI) for failing to comply with a mandatory vaccination policy, Service Canada needs to establish the following:
- you knew or ought to have known your employer had a mandatory vaccination policy;
- you knew or ought to have known that your failure to comply with that policy could result in your termination;
- you were given a reasonable opportunity to comply with that policy; and
- you were fired for your non-compliance with that policy and not for some other grounds.
Q: If I was terminated for not complying with my employer’s vaccination policy but my employer chose to terminate me “without cause”, can Service Canada still deny my EI?
A: Yes. The finding of misconduct involves a completely different legal test and there have been many reported cases where the Courts have upheld Service Canada’s finding of misconduct even though the employee was terminated without cause.
Still have questions about a denial? Contact a lawyer with experience in EI matters. Denial of EI benefits can be a significant financial loss, and these decisions can be appealed.
This blog is not intended to serve as legal advice, and only provides general information.
Every situation must be considered on its own facts. Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].