Employment Insurance (EI)

Decision

[1] The appeal is dismissed. The Tribunal disagrees with the Appellant.

[2] The Appellant hasn’t shown just cause (in other words, a reason the law accepts) for leaving her job when she did. The Appellant didn’t have just cause because she had reasonable alternatives to leaving. This means she is disqualified from receiving Employment Insurance (EI) benefits.

Overview

[3] The Appellant left her job for a leave of absence on October 25, 2021 and applied for EI benefits. The Canada Employment Insurance Commission (Commission) looked at the Appellant’s reasons for leaving. It decided that she voluntarily left (or chose to temporarily quit) her job without just cause, so it wasn’t able to pay her benefits.

[4] I must decide whether the Appellant has proven that she had no reasonable alternative to leaving her job.

[5] The Commission says that the Appellant could have either agreed to obtain two doses of a vaccine against COVID-19, or agree to weekly testing.

[6] The Appellant disagrees and states that she does not want to be vaccinated as she has had bad reactions to vaccines in the past. She also submits that getting a vaccine or submitting to weekly testing also go against her creed.

Matter I have to consider first

I will accept the documents sent in after the hearing

[7] At the hearing, the Appellant said that she would forward a formal copy of the employer’s vaccination policy to the Tribunal. This document was received as promised and coded GD7. It is considered in this decision.

Issue

[8] Is the Appellant disqualified from receiving benefits because she voluntarily left her job without just cause?

[9] To answer this, I must first address the Appellant’s voluntary leaving. I then have to decide whether the Appellant had just cause for leaving.

Analysis

The parties agree that the Appellant voluntarily left

[10] I find that the Appellant voluntarily left her job because there is no evidence to the contrary. The Appellant left or was put on unpaid leave because she would not follow the employer’s COVID-19 vaccination/testing policy. She knew that her refusal to follow the policy would result in an unpaid leave.

[11] The Appellant states that when the employer announced the COVID vaccination policy on September 7, 2021, she first used her paid holidays and then she was offered unpaid leave for a further two weeks. Finally the employer put the Appellant on three months of unpaid leave with the potential to revisit the situation after that time. I see no evidence to contradict that the Appellant is on a voluntary leave of absence.

The parties don’t agree that the Appellant had just cause

[12] The parties don’t agree that the Appellant had just cause for voluntarily leaving her job when she did.

[13] The law says that you are disqualified from receiving benefits if you left your job voluntarily and you didn’t have just cause.^{Footnote 1} Having a good reason for leaving a job isn’t enough to prove just cause.

[14] The law explains what it means by “just cause.” The law says that you have just cause to leave if you had no reasonable alternative to leaving or quitting your job when you did. It says that you have to consider all the circumstances.^{Footnote 2}

[15] It is up to the Appellant to prove that she had just cause.^{Footnote 3} She has to prove this on a balance of probabilities. This means that she has to show that it is more likely than not that her only reasonable option was to quit or to take unpaid leave. When I decide whether the Appellant had just cause, I have to look at all of the circumstances that existed when the Appellant left on unpaid leave.

[16] The Appellant says that she left her job because she could not be vaccinated and she refused to be tested weekly for COVID-19 because it is against her creed. The Appellant says that she had no reasonable alternative to leaving at that time.

[17] The Commission says that the Appellant didn’t have just cause, because she had reasonable alternatives to leaving when she did. Specifically, it says that the Appellant could have obtained medical evidence to show that she could not be vaccinated. This would have forced the employer to consider a medical exemption to vaccination.

[18] I find that the Appellant was placed on an unpaid leave of absence because of her refusal to follow her employer’s vaccination policy.

[19] The employer’s vaccination policy was first issued in September 2021 and then amended November 1, 2021.^{Footnote 4}

[20] The employer said that it set up the vaccination policy in response to both the Ontario Occupational Health and Safety Act (OOHSA), and Directive 6 of the Home Care and Community Services Act (HCCSA)issued by the Ontario government. The OOHSA mandates employers to ensure the health and safety of employees in the workplace. The HCCSA imposes a vaccination mandate to employees providing services in the home care setting.

[21] The main points of the employer’s vaccination policy are:

• It applies to every employee, contractor, volunteer or student unless there is a valid medical exemption;
• All must show proof of COVID-19 vaccine on or before December 15, 2021;
• If proof of vaccination is not provided, then written proof of a valid medical reason for exemption provided by either a physician or a nurse practitioner must be given. This must set out that the person cannot be vaccinated, and the effective time period for the medical reason (permanent or time-limited);
• If a medical exemption exists, daily testing will be required and a negative result obtained before entering any of the employer’s shared office space, or performance of work in the community or in a client’s home, or attending meetings or events;
• Employees who decide not to be fully vaccinated may resign, or choose to be placed on an unpaid personal leave of absence, on or before December 15, 2021;
• After three months of unpaid leave, employees who still refuse vaccination without a valid medical exemption will be terminated for being in violation of the employer’s Ontario Covid-19 Vaccination Policy;
• The mandatory vaccination policy becomes a condition of employment for all employees effective November 1, 2021.^{Footnote 5}

[22] In discussions with the Commission, and at the hearing, the Appellant made it clear that for her, getting the COVID-19 vaccine is against her “creed”. She firmly believes that unveiling her medical history or getting tested is an intrusion on her rights.^{Footnote 6} She says that not getting the vaccine is based on her right and belief in bodily autonomy.

[23] The Appellant has confirmed to the Commission that while vaccination is against her “creed”, she is not part of an organized religious group that has objections to vaccines.^{Footnote 7}

[24] I find that the Appellant’s objections based on either the Ontario Human Rights Code (discrimination based on creed), the OOHSA or the Genetic Non-Discrimination Act would be best addressed in other tribunals, with filing of relevant evidence.

[25] In the current proceeding, the decision to either allow or deny benefits under the Employment Insurance Act hinges on two determinations: first, did the Appellant voluntarily go on an unpaid leave, and second, did she have just cause to do so.

[26] I note that the Appellant has submitted some medical evidence.^{Footnote 8} This consists of a Holter Monitor report from March 12, 2018, that indicates “a few benign ventricular ectopic beats which are often symptomatic”. An electrocardiogram done around that date concludes that the Appellant showed “PVCs (Premature Ventricular Contractions) in the vertical axis”; the initial assessment at triage is also included. I find that while this information is indicative that the Appellant might have some heart-related symptoms, there is no evidence of any further investigation or of more recent information that could support a request for accommodation not to be vaccinated. There is absolutely no evidence that a COVID-19 vaccine would be dangerous for the Appellant given this very limited and outdated medical information.

[27] I also note that while the Appellant testified that she asked her employer to work from home, there is no evidence of a formal request or of a formal denial in the file.

[28] In essence, the Appellant refused to be vaccinated according to the employer’s policy. When told that if she were not vaccinated, she would have to submit to daily testing, the Appellant refused that as well. The Appellant did not submit any medical evidence that would justify an exemption to the vaccine mandate.

[29] I find that the Appellant was informed of the vaccination policy and nonetheless decided not to be vaccinated or tested. The Appellant knew that this would lead to leave without pay, so she voluntarily chose to take the leave of absence. The Appellant had alternatives; she could have been vaccinated, or agreed to get tested, or provided medical documentation to justify an exemption. She did none of these things.

[30] Considering all the evidence, I find that the Appellant did not show that she had just cause for voluntarily taking a leave of absence when she did.

Conclusion

[31] I find that the Appellant is disqualified from receiving benefits.

[32] This means that the appeal is dismissed.