No COVID shot means no employment insurance
Many people mistakenly believe that if they are terminated and the employer puts the code for “dismissed” on their employment record, they will not be eligible for employment insurance. That is not the case.
The only time you are not eligible for EI is if you voluntarily leave your job without just cause or are terminated as a result of your own misconduct. That term “misconduct” is fairly strictly interpreted and it has to be something relatively serious for you to lose your EI entitlement.
By the late summer of 2021, Neil had been working for a large hospital in the IT department for a number of years. Before the pandemic he worked half-time at home. Once the pandemic hit, he worked exclusively from home. Even in normal times he rarely interacted with other staff or patients.
The hospital announced a policy that all staff had to have at least their first COVID vaccination by Oct. 22, 2021 or face termination. The only exception was for a medically documented exemption. Neil asked for an exception based on the Ontario Human Rights Code but was unsuccessful. The problem was Neil was not claiming that he was being discriminated against based on his age, sex, colour, creed or any other prohibited ground under the code. It was just that Neil did not agree with the policy. The exception was denied and on Nov. 2 Neil was terminated.
The next month Neil applied for EI.
One of the definitions of misconduct is whether it was such that its author could foresee it would likely result in their dismissal. Neil had been warned repeatedly that his employment would be terminated if he did not get at least his first COVID shot. This was in a situation where the provincial government had mandated vaccinations for health-care workers.
Neil’s application for employment insurance was denied and he appealed that decision all the way to the federal court. He had no success. The employer had an obligation to take all reasonable precautions to protect the health and safety of its employees and patients. Neil had every right to refuse to get vaccinated, but it was a choice. Whether you call it misconduct or a voluntary leaving, the result is the same. A choice was made and the consequences had been made clear.
Lest you muse that mandatory vaccination policies are old news, I would note that we have no idea if or when the next pandemic is coming. These cases are taking time to wind their way through the legal system and may seem a bit like yesterday’s problems. These decisions, however, will be quickly reviewed and relied upon if another pandemic arises and mandatory vaccination policies re-enter the workplace.
As a result of this decision, if vaccinations are mandated in the future, the rules for getting EI will be far more clear than they were for Neil. Nobody knew how Service Canada would approach these situations. Those refusing to honour an employer-mandated vaccination policy had no idea whether they would be entitled to a severance package or EI. For good or ill, if this situation arises again, at least there will be some clarity.
This article was originally published by The Hamilton Spectator.
