Employment Insurance (EI)

Fired for refusing vaccination – can I still collect EI?

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.

Employment Insurance (EI)

EI the Basics

Covid-19, Employment Insurance (EI), Layoff

E.I. and Covid-19 Layoffs

E.I. and Covid-19 Layoffs - 5 Tips for Workers and Businesses

*This blog post is current to 8:00 AM on March 17, 2020. Forte Law is offering virtual legal services, including zoom video meetings or telephone consultations, so you can get legal advice from your home or office. *

As many workers and businesses are facing the idea of layoffs for the very first time, understanding the basics of Employment Insurance (E.I.) can be helpful.

Employees may be eligible for Employment Insurance (“E.I.”) benefits if they meet the following:

They have experienced an IOE. An Interruption of Earnings or IOE is where an employee has had 7-straight days of no work and no pay with an employer.
They have worked at least 700* hours in the last 52 weeks (about 5-straight months of full-time work)

*This is the amount needed in Metro-Vancouver. For other regions please check here.

As we each do our part to flatten the curve, we offer employees and employers the following 5 tips to help each other navigate through these difficult times.

Employees

If you have experienced an IOE or believe you will, apply for EI ASAP.

It takes time for your EI claim to be processed. You can apply even if you don’t have your ROE, click on this link, scroll down to the very end and click "apply online". There will be a huge demand for EI, so get your application in early.

That said, if your hours are reduced or you have been out of work for less than 7 days, you should think twice before applying, since you have not met the qualifying conditions and may not be eligible for E.I.

Create a MyServiceCanada account

You can create your MyServiceCanada account once you have submitted your application and received your 4-digit access code in the mail. MyServiceCanada account lets you see your ROE, the status of your claim, how much EI you get paid, and how long you can get paid.

Stay on top of your EI Reports

You must continue to complete your EI Reports in order to get paid. You can complete them online

Look for work while you are collecting EI

You have a legal requirement to do so if you wish to continue collecting E.I.

You are allowed to work part-time and still be paid E.I. in some circumstances

See explanation here.

Employers

ROEs can only be issued after an IOE

If you are laying off an employee because of a temporary closure, the employee will need to have gone through 7 days without work or pay before you can issue the employee an ROE. ROEs that are issued before an interruption of earnings has occurred may require verification from an E.I. Agent and can delay an employee’s E.I.

Consider issuing web ROEs

This is a stressful time for your employee to be out of a job and the last thing they want is to have their EI delayed because of a missing ROE - submit the ROE online - that way everyone (the employee, yourself, and Service Canada gets a copy).

Complete the ROE correctly

If you are laying off employees, complete Block 16 with code "A" and check off either “unknown” or a specific date in Block 14. Make sure you don't check off "not returning" as this can be seen as a termination of employment.

Issue the ROE on time

You have 5 days after the employee experiences an “interruption of earnings” to issue an ROE, so this means you would issue them between 7 and 12 days after the layoffs.

Consider offering some work for employees who are a few hours short of the insurable hours minimum

At present, the law is clear: if an employee does not have enough hours, they will not get E.I. even if they are one hour short. While employers are under no obligation to do so, offering an employee a few more hours of work so that they have enough insurable hours to qualify for EI can go a long way in helping out an employee. Generally speaking, a happy employee is less inclined to sue their employer.