ROEs and Terminations due to Non-Compliance with COVID-19 Mandatory Vaccination Policies

• Andrew
  Skeith

  Andrew
  Skeith

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With the introduction of the Restrictions Exemption Program by the Government of Alberta, many employers have taken the opportunity to introduce mandatory vaccination policies requiring their employees to be fully vaccinated against COVID-19. Many of these policies contain provisions stating that, if an employee fails or refuses to present proof of vaccination to the employer, they shall be subject to discipline up to and including termination of employment for cause.

When an employment relationship ends, whether the reason be a resignation, a termination, or an employee commencing a leave of absence, the employer is required to issue a Record of Employment (“ROE”) to Service Canada. Service Canada uses the information on the ROE to determine whether the individual qualifies for employment insurance benefits, which are administered by the department of the federal government known as Employment and Social Development Canada (“ESDC”).

One of the most important pieces of information the employer provides on the ROE form is the “Reason for issuing this ROE”, and takes the form of a series of fixed codes which the employer enters into Block 16 on the ROE.

These codes include:

• Code A – Shortage of Work (layoff);
• Code B – Strike or lockout;
• Code C – Return to school;
• Code D – Illness or injury;
• Code E – Quit;
• Code F – Maternity;
• Code G – Retirement;
• Code H – Work-Sharing;
• Code J – Apprentice Training;
• Code M – Dismissal;
• Code N – Leave of absence;
• Code P – Parental;
• Code Z – Compassionate Care/Family Caregiver;
• Code K – Other;

When an employee is terminated for any reason, employers will generally use Code M. In the case of a without-cause dismissal, the employer should generally note on the ROE that it was a “without cause termination”. Employees whom are terminated without cause are generally entitled to EI benefits.

If an employee is terminated for cause as a result of misconduct, they are not generally entitled to EI benefits.

ESDC has recently provided direction to employers and employees on the proper codes to use on a ROE where an employee has been terminated as a result of a refusal to comply with a mandatory COVID-19 vaccination policy.

ESDC states that:

• “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).”; and
• “When you suspend or terminate an employee for not complying with your mandatory COVID-19 vaccination policy, use code M (dismissal).”

If employers use these codes, ESDC has stated that it may contact the employer to determine the following information:

• if you 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; and
• if there were any exemptions for refusing to comply with the policy;

Based on the above direction from ESDC, if an employer is proceeding to terminate employees based on a refusal to become vaccinated, it is imperative that the employer have a properly drafted vaccination policy which provides for legitimate exemption requests pursuant to Alberta human rights law. Furthermore, employers must ensure they provide adequate notice of the policy to their employees, and that the policy contains clear language stating that a termination may follow from a refusal to become vaccinated.

If you are an employer who has questions about imposing a mandatory vaccination policy in your workplace, or about terminating employees who refuse to comply with such a policy, please contact the writer, or any member of our Labour & Employment team.

This post is meant to provide information only and is not intended to provide legal advice. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this post to be outdated.