EI Denied for Breaching Vaccination Policy

Even after most COVID restrictions have been lifted, a recent decision upheld the right of employers to mandate health standards in the workplace. In May 2024, Robin Francis v. Canada (AG) confirmed that workers who fail to comply with workplace vaccination policies are guilty of wilful misconduct, and thereby disqualified from receiving Employment Insurance.

Dr. Robin Francis’s employer implemented a mandatory COVID vaccine policy in September 2021. Dr. Francis applied for an exemption from the policy based on creed, which was denied. After failing to become vaccinated by the required date, Dr. Francis was terminated by his employer.

Dr. Francis then sought Employment Insurance. His application was denied by the Canada Employment Insurance Commission because his breach of his employer’s vaccine policy amounted to termination for wilful misconduct. Dr. Francis appealed the decision to the Tribunal’s Appeal Division, who held the benefits had been properly denied. He then applied for judicial review at the Federal Court of Appeal.

After failing on judicial review, Dr. Fraser unsuccessfully applied for leave to the Supreme Court of Canada.

This case stands for the principle that failing to comply with a mandatory vaccine policy is sufficient to establish wilful misconduct in the workplace. The ruling may increase employee’s adherence to vaccine policies, as those who are terminated for non-compliance will no longer be able to rely on receiving Employment Insurance to supplement their lost income.

Working for Workers Five Act

Bill 190, Working for Workers Five Act, 2024 (“the Act”) was announced by the Ontario government on May 6, 2024. The Act proposes numerous changes to the Employment Standards Act (“ESA”) that are aimed at improving the workplace, including new health measures, removing barriers to employment, supporting women at work, and increasing fairness for job seekers. While the Act promises a better work environment to employees, it will be quite onerous for employers. Most notably, it will double the maximum fine for employers who violate the ESA, remove an employers’ right to ask for sick notes from medical professionals, and alter job posting requirements. If the Act receives Royal Assent, some of the changes to come are detailed as follows:

 

 

Keeping Workers Healthy and Safe

Employers will be prohibited from requesting a sick note from medical professionals when workers use their three days of statutory sick leave under the ESA. They will be able to request other forms of evidence that are not from medical professionals, and are reasonable in the circumstances, such as signed self-attestations.

Remove Barriers to Employment

Registration for internationally trained workers will be streamlined. Where typical registration documents are not available for reasons beyond the applicant’s control, such as war or disaster, the employer must accept alternative forms of documentation.

Support Women at Work

Employers will be required to maintain a record of washroom sanitation to ensure accountability for cleanliness. The definition of workplace harassment will also be expanded to include virtual harassment, as well as virtual sexual harassment.

Increase Fairness for Jobseekers and Employees

On October 1, 2024, minimum wage will increase by 3.9%, from $16.55 to $17.20.  This is particularly impactful in industries where the division between employee and supervisor is an increased hourly rate. In addition to higher rates for entry-level staff, it is likely that an increased minimum wage will prompt supervisors in these industries to ask for a raise to maintain the hierarchy that is represented by differences in pay.  It also may deter entry-level staff from seeking promotion, as they will already be making a similar pay as their supervisors.

Public job listings will require specific indication of whether the position is currently vacant, and the employer will be required to respond to all candidates who are interviewed for the position.

The Act will also double the fine for violating the ESA, going up from $50,000 to $100,000.

The Act has not yet received Royal Assent, so it may be modified before it becomes law. To avoid the risk of a hefty fine, employers are encouraged to consult a lawyer to ensure compliance with the upcoming changes.