Are You Eligible for Employment Insurance If Unvaccinated?

Due to the evolving state of the COVID-19 pandemic, employers have begun instituting mandatory vaccination policies. Many employers who opt-out of getting the COVID-19 vaccine and experience dismissal may be wondering if they are eligible for employment insurance. On October 15, 2021, Employment and Social Development Canada (ESDC) released an updated guide for employers on how to fill out an employee’s Record of Employment (ROE) on their website page titled EI Information for Employers – COVID-19.

ROE and Eligibility for Employment Insurance (EI)

An employer is required to provide an ROE to any employee who undergoes an interruption of earnings. When preparing an ROE, an employer must fill out Block 16, which indicates the reason the employer is issuing the ROE.

The Employment Insurance Act governs an employee’s entitlement to receive EI. Section 30(1) mandates that if an employee has been suspended or dismissed due to their own misconduct, or they have voluntarily left their employment without just cause, they are disqualified from receiving EI benefits. However, this rule is subject to careful analysis of the situation as certain exemptions may apply to individual employees, which may affect whether an employee is eligible for employment insurance.

ROE Codes and COVID-19

The updated guide release by ESDC on completing ROEs sets out three codes to use when an employee refuses to become vaccinated, despite whether an employer’s mandatory vaccination policy leads to unemployment:

• Code E – Quit
• Code N – Leave of Absence
• Code M – Dismissal

Codes E and N will be used when an employee fails to attend at the workplace due to their refusal to comply with their employer’s mandatory vaccination policy. Code M will apply when an employee is suspended or terminated by their employer due to their failure to comply with the employer’s mandatory vaccination policy.

If any of these codes are used on your ROE then it is likely your ability to qualify for EI will be negatively impacted, unless you qualify for an exemption from the vaccine due to a medical condition or religious belief.

While this guidance issued by ESDC is not legally binding, it strongly indicates the Canadian government may consider individuals who are unemployed as a result of non-compliance with their employer’s mandatory vaccination policy are no longer eligible for employment insurance.

The Minister of Employment, Workforce Development and Disability Inclusion, the Honourable Carla Qualtrough, stated in an October 21, 2021 interview that getting vaccinated is “a condition of employment that hasn’t been met and the employer [is] choosing to terminate someone for that reason, [then that] would make that person ineligible for EI.”

Conclusion – Are You Eligible for Employment Insurance if You are Unvaccinated?

While every individual retains the right to bodily autonomy and freedom of choice, employers are similarly free to choose who they employ, as long as their decision to no longer employ an individual is not based on any of the protected grounds listed in the Ontario Human Rights Code.  Employees who choose not to become vaccinated despite their employers’ mandatory vaccination policy should be aware of the consequences that may accompany their choice, including their eligibility for employment insurance. For more information, please visit EDSC’s website page EI regular benefits: Do you qualify to ensure you have the latest updates.

Contact Achkar Law

If you are an employer who needs assistance with an employee dismissal or an employee who believes you’ve been wrongfully dismissed, our team of experienced workplace lawyers at Achkar Law can help. Contact us by phone toll-free at  1 (800) 771-7882  or email us at [email protected] and we would be happy to assist.