New Guidance for ROE Issued Due to Vaccination Policy

Many Canadian employers, including both the federal and provincial governments, are implementing mandatory COVID-19 vaccination policies as an additional step to provide employees with a healthy and safe workplace. These policies often involve employment consequences for an employee which constitute an “interruption of earnings”, triggering the employer’s obligation to issue a Record of Employment (“ROE”). For example, an interruption in earnings may be caused by a leave of absence or dismissal resulting from a COVID-19 vaccination policy.

Employment and Social Development Canada (“ESDC”) recently issued additional guidance to help employers correctly issue ROEs in the context of a mandatory COVID-19 vaccine policy. Block 16 of the ROE form requires that the employer identify the reason for issuing the ROE. As it can be challenging to identify the correct code that applies in the context of an interruption arising from a vaccination policy, this new guidance is welcome news for employers. Employers should also be aware that it is an offence for an employer to misrepresent the reason for issuing an ROE.

The new ESDC guidance provides that in the context of an interruption in service due to a mandatory vaccine policy, employers should use the following codes:

• Code E (quit) or Code N (Leave of absence): Employees who don’t report to work because they refuse to comply with your mandatory COVID-19 vaccination policy.
• Code M (Dismissal): Applies when an employer suspends or terminates an employee for not complying with a mandatory COVID-19 vaccine policy.

When using these codes, the ESDC may contact an employer to determine:

• if the employer adopted and clearly communicated to all employees their 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 applicable exemptions for refusing to comply with the policy.

Employees who lose or quit their job as a result of their employer’s mandatory COVID-19 vaccination policy will not, in most cases, be eligible for employment insurance benefits. However, ESDC will assess the employee’s eligibility on a case-by-case basis for employment insurance benefits based on the facts provided by both the employer and the employee as described above. Employers who are implementing vaccination policies should be ready to respond to requests for further information from the ESDC.

If you have further questions about this article, or about vaccination policies more generally, please contact your Harris lawyer.