Don't expect EI if you lose your job for not being vaccinated, minister says

Employment Minister Carla Qualtrough says it's likely that people who lose their jobs for not complying with employer COVID-19 vaccine policies will not be eligible for employment insurance (EI).

"It's a condition of employment that hasn't been met," Qualtrough said in an interview with CBC's Power & Politics. "And the employer choosing to terminate someone for that reason would make that person ineligible for EI.

"I can tell you that's the advice I'm getting, and that's the advice I'll move forward with."

Qualtrough said this rule does not apply in situations where someone has a medical exemption or a "valid reason" for not being vaccinated.

Employment and Social Development Canada's website says EI is available to "all individuals who lose their jobs through no fault of their own (for example, due to shortage of work, seasonal or mass lay-offs) and are available for and able to work, but can't find a job."

For most people, EI pays 55 per cent of their average weekly earnings up to a maximum of $595 per week.

Qualtrough's comments come as a number of workplaces are requiring that employees be vaccinated. Parliament's governing body recently announced a policy of mandatory vaccination for members of Parliament who do not have a medical exemption. The Toronto Police Service also announced today that officers who aren't vaccinated will be placed on unpaid leave.

Qualtrough cautioned that this is not yet a firm public policy decision — the government is still in caretaker mode following the recent federal election and Prime Minister Justin Trudeau has not unveiled a new cabinet yet. He'll do that on October 26.

"We'll have to wait and see what the prime minister does next Tuesday with his cabinet," she said.

Paul Champ, an employment lawyer in Ottawa, disagrees with Qualtrough's position on EI and vaccines.

"I think it's very arguable about whether employees terminated for not getting the vaccine requirement is just cause for termination," he said in an interview.

"I think it's reasonable that some employers may and will terminate employees for not being vaccinated — I don't take issue with that — but it's different to say that it's just cause, meaning you pay them nothing."

Employees terminated for just cause are not eligible for severance or EI. 

Champ said the bigger issue is that the minister commented on the question before the Employment Insurance Commission and the Social Security Tribunal — which determine who is entitled to EI — made a decision.

Champ said he always has the same advice to clients.

"My first piece of advice to clients is, 'Get vaccinated,'" he said.

But it may be a stretch, he said, to suggest an employer can order an employee to be vaccinated.

"That interferes with bodily integrity and at least my opinion — and I think the consensus among most employment lawyers right now — is that it's not just cause for an employee to refuse that, at least in most circumstances," he said.

Employers may be able to accommodate employees who can't or won't get vaccinated, Champ said. Some employees can continue to work from home, and others may be able to submit to frequent COVID-19 testing as a substitute.

Going forward, there's a way employers who are hiring can make the issue a lot simpler, he said.

"Employers could, when they're making hiring decisions right now, make having a vaccine a requirement of employment," he said.  "An employee's accepting a job knowing that — that's a job requirement."

A spokesperson for Employment and Social Development Canada affirmed Qualtrough's position in a statement to CBC Friday.

"A fundamental principle of the EI program is that claimants must lose their employment through no fault of their own to be eligible for EI regular benefits," the statement reads.

"While each EI application is assessed on a case-by-case basis, employees not complying with their employer's mandatory vaccination policy would typically not be eligible to receive EI regular benefits unless there are extenuating circumstances."

The statement says that an individual might be entitled to EI benefits in cases where an employer can't accomodate a medical or religious exemption.

A claimant who disagrees with a decision on EI benefits can request a reconsideration 30 days after the decision is made, the statement says. After that, they may file an appeal to the Social Security Tribunal.