New ROE Guidelines – Liability and Hardship?  

Written by on December 17, 2021 in Covid-19 Centre, Employment Law Blog, Employment Law Issues

By Ron Minken, Tanya (Tejpreet) Sambi and James Moon

Despite the upcoming holidays, the blow that the pandemic has dealt to many workers’ mental health, and the increase in suicide rates, some employees may be denied Employment Insurance (“EI”) benefits if they are terminated because of the employer’s vaccination policy.  

EI is typically available for individuals who lose their jobs through no fault of their own, are available to work, but cannot find employment. Both employers and employees contribute/pay into this. This results in less hardship to employees. It is also beneficial to employers as employees may be less likely to pursue them for the loss of wages.  

One of the documents that is used to assess one’s EI eligibility is the Record of Employment (“ROE”). The ROE is issued by the employer and provides the employment history of the EI claimant. The government uses the ROE to assess whether the claimant is qualified to receive EI benefits, namely, to determine whether the former employee lost their job due to just cause or no fault of their own.  

Employment and Social Development Canada (ESDC) has recently issued a notice for employers, who are enforcing COVID-19 vaccine mandates, that if an employee refuses to comply with the vaccine mandate, the employer should indicate that the employee quit, took a leave of absence, or was dismissed – potentially disqualifying them from EI. It appears that ESDC has ignored the fact this may not be an accurate representation and that both employers and employees have contributed/paid to EI and that employees would otherwise be entitled to EI, except for exceptional circumstances such as quitting or there being cause to terminate employment, which is traditionally very difficult to find. 

ROE Guidelines

The new ROE guideline says, 

“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 an employer uses one of the codes above to indicate that their employee has failed to comply with the COVID-19 vaccination mandate, the ESDC may contact the employer to determine:  

  • if the mandatory COVID-19 vaccination policy has been adopted and clearly communicated to all employees   
  • 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 

Although employment insurance claims will likely be assessed on a case-by-case basis, if ESDC is satisfied that the employer has taken reasonable steps to clearly communicate to all its employees why the vaccination policy is needed, explain the consequences of not complying with the vaccination policy, the reasonable application of the vaccination policy and if there are no exemptions for the employee to refuse to comply with the vaccination policy, then the employee’s application for EI benefits may be rejected.    

It appears that ESDC is considering an employee’s refusal to comply with a vaccination policy as being similar to quitting or a termination of employment for cause where there would typically be no entitlement to EI benefits. This is clearly not the case. It will no doubt result in great inequity. This also raises issues of Human Rights and Privacy.  

ESDC’s decision, especially during the pandemic and as we approach the holidays, will impact many families not only financially but from a mental health perspective, and result in hardship to those who have lost their employment due to their refusal to comply with a vaccination policy. 

How Minken Employment Lawyers Can Help

If you require legal advice on the new ROE guidelines, completing a Record of Employment or on the ESDC notice and the potential impact on your business, contact us today to speak with one of our lawyers or call us at 905-477-7011 for assistance prior to taking any steps that may expose you to legal liability.   

For regular updates, please sign up for our Newsletter to receive up-to-date Employment Law information, including new legislation and Court decisions impacting your workplace.  

Please note that this article is for informational purposes only and does not constitute legal advice.

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