If you were fired from your job for refusing to get a COVID-19 vaccine and test, there is a good chance you won’t be eligible for any unemployment benefits in Canada, legal experts say.
A federal court decision last week stated that a man in Ontario was not entitled to receive Employment Insurance (EI) benefits after he was terminated from his health-care job because he failed to comply with the employer’s policy regarding COVID-19 vaccination and testing.
Anthony Cecchetto, a former employee at Lakeridge Health in the Greater Toronto Area, was put on unpaid leave in September 2021 and then dismissed a month later, according to the ruling.
His EI application was denied in October 2021 because he had lost his job due to “misconduct” and was seeking a judicial review of an earlier decision by the Social Security Tribunal, which had ruled he was not eligible for EI.
Federal Court Justice William Pentney said in his ruling dated Jan. 23, 2023, that Cecchetto “has not put forward any legal or factual argument that persuades me that the Appeal Division’s decision is unreasonable.”
COVID-19 vaccine mandates across Canada led to thousands of workers in different sectors and provinces losing their jobs or being put on unpaid leave.
Employment and Social Development Canada had warned in October 2021 that workers who lose their job over a refusal to vaccinate against COVID-19 may not be eligible for EI benefits.
Employment Minister Carla Qualtrough at the time told Global News that disobeying clear vaccine policies was seen as non-compliance in EI claims.
“A fundamental principle of the EI program is that claimants have to lose their employment for no fault of their own — and this would be seen typically as a choice,” she said on Global’s The West Block.
Many Canadians have challenged their dismissals and the subsequent EI disqualifications in court, but with little success.
Jon Pinkus, an employment lawyer in the GTA with Samfiru Tumarkin LLP, said this latest decision comes as no surprise and has some precedent with respect to similar cases where an employee has refused both COVID-19 testing and vaccination.
“Employment insurance is a federal scheme, so this applies across the country in that sense,” he said.
However, he noted that the law will consider both vaccination and testing differently.
“There was also a decision where an employee who had not been given the alternative of testing to vaccination was deemed to be entitled to employment insurance, and that was deemed not misconduct,” Pinkus said.
Michael Stitz, another employment lawyer in Toronto, said there is a trend in favour of protecting employers and governments when safety-sensitive environments and COVID-19 mandates are the topics of discussion.
“The reality is this sends a clear message that the courts are not going to bend over backwards with respect to those who may have suffered economic loss due to an unwillingness to both get vaccinated and/or test,” he told Global News.
From a legal standpoint, those employees who have been let go without a government mandate in place should be entitled to compensation, lawyers say.
COVID-19 vaccine mandates have become a thorny issue, polarizing Canadians across the country.
The federal government enforced a mandatory COVID-19 policy for all federal workers back in October 2021.
That mandate was lifted in June 2022.
Despite the mandates imposed, Stitz said the government never expressly permitted the termination of employment with no severance – and that could create a situation where the most vulnerable people are adversely affected, he said.
“Employment Insurance is really not a one-size-fits-all scenario.”
“In scenarios where employees have legitimate health reasons and their employment was terminated, for example, it could certainly result in unfairness.”
As for wrongful dismissals and denying severance, the jury is still out on whether an employer can terminate for cause on the basis of an employee not getting a COVID-19 vaccination, said Pinkus.
“There is no precedent of an employer asserting that an employee has been guilty of gross misconduct as a result of essentially declining a form of medication.”
In September 2022, the federal government ended temporary changes to the EI program that were made during the pandemic, reverting back to the original framework.
Under the temporary measures, workers qualified for EI based on a national requirement of having 420 insurable employment hours. Additionally, monies paid on separation from a job, such as severance, were not deducted from benefits. Those measures have now been scrapped.
— with files from The Canadian Press