Ottawa clarifies ROE rules for vaccine-related dismissals

Ottawa has clarified the rules when it comes to records of employment (ROEs) and vaccine mandates. The government is providing additional information to that provided in October.

If employees are directly affected by a lockdown as a result of COVID-19 and they’re no longer working, employers must issue an ROE.

And in a Dec. 24 update, the federal government confirmed that:

• when the employee is no longer working due to a shortage of work because the business has closed or decreased operations due to a lockdown as a result of COVID-19, employers should use code A (shortage of work)
• when the employee is sick or quarantined, they should use code D (illness or injury) as the reason for separation (block 16)
• when the employee refuses to come to work but is not sick or quarantined, use code E (quit) or code N (leave of absence), as appropriate.
• when an employer suspends or terminates an employee for not complying with a mandatory COVID-19 vaccination policy, it should use code M (dismissal or suspension).

If an employer uses codes E, M or N, the government may contact them to determine:

• if they had adopted and clearly communicated to all employees a mandatory COVID-19 vaccination policy
• 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.

The federal government said in December it would make COVID-19 vaccination mandatory in all federally regulated workplaces. And mandatory vaccination requirements are already in place for the public sector, employees working in the federally regulated air, rail, and marine transportation sectors, and travellers on these modes of transportation.

CEWS rules

If an employer is paying employees with the Canada Emergency Wage Subsidy (CEWS), it should only issue ROEs for those who have an interruption of earnings when the CEWS ends, says Ottawa.

If employees are still off work when their CEWS ends, they can apply for EI benefits. If they do, the government will use their ROEs to determine if they qualify for EI benefits.

Employees who are in insurable employment before receiving CEWS continue to be in insurable employment once in receipt of the CEWS, if that is the only thing that has changed, says Ottawa. This remains true even if the employee is not working while receiving the CEWS.

Expanded access to the Canada Worker Lockdown Benefit (CWLB) is now in effect.

Previously announced in December, the program now includes workers in regions where provincial or territorial governments have introduced capacity-limiting restrictions of 50 per cent or more.

‘Wrong-headed’ policy?

But the Canadian Civil Liberties Association (CCLA) is criticizing the federal government’s position because if an individual is terminated for failing to comply with an employer’s vaccination mandate, the individual will not be considered eligible for EI benefits.

“In effect, a refusal to be vaccinated, or to disclose one’s vaccination status to an employer is treated as misconduct. In our view, this policy is wrong-headed, counter-productive, and may well conflict with the government’s constitutional and human rights obligations. We strongly urge you to reconsider this position,” says Cara Faith Zwibel, director of the fundamental freedoms program at the CCLA in a letter addressed to the minister of employment, workforce development and disability inclusion.

Vaccination mandates not a simple question of occupational health and safety, say Zwibel, adding that requiring vaccination from workers who do not physically interact with other employees cannot be said to be required “based on health and safety or employment-related concerns”.

The group adds that encouraging individuals to be vaccinated is “a valid policy objective”, but “it cannot be pursued without limits”. This is because individual who are willing to risk losing their job rather than take COVID-19 jabs have “a genuine and sincerely held objection”.

“While it may be easy to try to dismiss all such individuals and assume that their hesitancy is premised on misinformation, we know that this is not true of all individuals who refuse the vaccine,” she says, noting that some had been advised by their physicians not to be vaccinated based on complex personal health issues.

The legality of vaccine mandates was somewhat clarified in two recent Ontario decisions, which provide takeaways for employers on the reasonableness of policies.