Completing Records Of Employment For Vaccination Policy Terminations

Employment and Social Development Canada (ESDC), the Federal Government ministry responsible for administering Employment Insurance (EI), has recently amended its guidance to employers completing Records of Employment (ROEs) for employees who are non-compliant with mandatory COVID-19 vaccination policies ("Mandatory Vaccination Policies").

Although this guidance is not legally binding, it suggests that ESDC may consider employees who lose their jobs due to non-compliance with a Mandatory Vaccination Policy ineligible for EI payments.

This guidance directs employers to complete the reason for issuing the ROE under Block 16 of the form as follows:

• Code E (quit) or code N (leave of absence) if the employee doesn't report to work because they are not complying with the employer's Mandatory Vaccination Policy; and
• Code M (dismissal) if the employer suspended or terminated the employee for not complying with the employer's Mandatory Vaccination Policy.

The guidance also states that ESDC may contact an employer using these codes to determine a number of circumstances relating to the employee's departure:

• If the employer had adopted and clearly communicated a Mandatory Vaccination Policy;
• If the employer informed employees that failure to comply with the Mandatory Vaccination Policy would result in loss of employment;
• If the application of the Mandatory Vaccination Policy to the employee was reasonable within the workplace context; and
• If there were any exemptions for refusing to comply with the Mandatory Vaccination Policy.

Guidance provided by ESDC to employees regarding EI eligibility states that employees who have lost or quit their jobs due to non-compliance with a Mandatory Vaccination Policy will not be eligible for EI in most cases, and that ESDC will rely on information provided by the employer to determine eligibility.

For employers, this guidance reiterates the importance of clearly communicating Mandatory Vaccination Policy terms to all employees and clearly setting out the consequences of non-compliance with a Mandatory Vaccination Policy. This may include stating that an employer may prohibit a non-compliant employee from attending work and may terminate their employment, if that is the intent under the policy.

Employers who are seeking further guidance with implementing and enforcing their COVID-19 vaccination policies should contact a member of our labour and employment team.

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