Question Period Note: EI eligibility for claimants refusing to be vaccinated and the caretaker convention

Media articles have suggested that key decisions were not taken as a result of a stricter than necessary application of the caretaker convention.

• A fundamental principle of the Employment Insurance (EI) program is that claimants must lose their employment through no fault of their own to be eligible for EI regular benefits.
• A claimant is disqualified (or disentitled) from receiving benefits if they have been suspended or dismissed as a result of their own misconduct, or if they have voluntarily left their employment without just cause.

• Mandatory COVID-19 vaccinations as a condition of employment may lead to workers being dismissed or suspended without pay from their employment if they refuse to comply.

• The decision on whether an individual is eligible for EI benefits rests with the Canada Employment Insurance Commission. This was not a change in policy, but rather the application of existing policy.

A number of employers are implementing mandatory COVID-19 vaccination policies. Employees who do not vaccinate face being suspended or dismissed from their employment, or may choose to quit their jobs rather than comply. Whether these workers would have access to Employment Insurance (EI) benefits depends on several factors and all claims for benefits would be adjudicated based on individual circumstances.

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 EI legislation does not have any explicit rules around COVID-19 vaccine refusal and EI eligibility. However, it states that a claimant is disqualified (or disentitled) from receiving benefits if they have been suspended or dismissed as a result of their own misconduct, or if they have voluntarily left their employment without just cause.

In this context, if an employee has willfully refused to comply with the vaccination policy and had no valid reasons (i.e., medical condition, religious beliefs) that would justify the refusal, and there is a clear link between the employee’s refusal to comply with the policy and the leave without pay or termination, then there are decisive factors that would support a finding of misconduct (and therefore disqualification from EI benefits for the claimant):

• The employer has adopted and communicated a clear mandatory vaccination policy to all its affected employees;
• The employees are aware that failure to comply with the policy would cause a loss of employment; and
• The application of the policy to the employee is reasonable within their specific circumstances

Service Canada uses the information provided by both the employer (via the Record of Employment [ROE]) and the claimant (via the application) to determine whether a claimant is entitled to receive EI benefits.

Depending on the information provided, Service Canada may undertake further fact-finding with both parties, for example to determine if the claimant had just cause to voluntarily leave (quit) employment or if the claimant’s dismissal was for misconduct. Ultimately, Service Canada must rely on the accuracy of the information provided.

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