Employment Insurance (EI)

Introduction

[1] The Claimant was suspended from his job for not complying with his employer’s COVID-19 vaccination policy. The policy required employees to report their vaccination status, and be fully vaccinated against COVID-19 or have an approved exemption. The Claimant didn’t comply with the policy by the deadline. As a result, the employer placed him on an unpaid leave of absence (suspension).

[2] The Commission decided the Claimant couldn’t be paid EI benefits because he was suspended due to misconduct. The Claimant asked the Commission to reconsider this decision because the requirement to be vaccinated and attest to his vaccination status wasn’t part of his employment contract. Further, he believes the vaccine isn’t safe so a mandatory vaccination is unreasonable.

[3] The Commission maintained its decision because the Claimant was aware of the employer’s policy. He knew that failing to comply with the policy would cause him to be suspended from his job and he made the choice not to comply. The Claimant has appealed this decision to the Tribunal.

Issue

[4] I must decide whether the appeal should be summarily dismissed.

Analysis

[5] I must summarily dismiss an appeal if I am satisfied that it has no reasonable chance of success.^{Footnote 1}

[6] The law says that claimants who are dismissed from their job because of misconduct are disqualified from receiving benefits.^{Footnote 2}

[7] It also says that claimants who are suspended from their job because of their misconduct are disentitled from receiving benefits until one of the following conditions is met:

• their period of suspension expires; or,
• they lose or voluntarily leave their job; or,
• they work enough hours with another employer after the suspension started.^{Footnote 3}

[8] On September 15, 2021, the Claimant’s employer put in place a policy that required employees to report their vaccination status and be fully vaccinated or have an approved exemption by November 1, 2021. Employees did not comply with these requirements would have to undergo rapid antigen testing twice per week until December 31, 2021. Employees who still did not comply with the policy by January 10, 2022, would be placed on unpaid leave of absence.^{Footnote 4}

[9] The employer announced the policy by email on September 15, 2021. They held several meetings to address the policy and allow employees to ask questions. On December 15, 2021, the employer sent the Claimant a final notice saying that if he was not in compliance by January 10, 2022, he would be placed on unpaid leave.^{Footnote 5}

[10] The Claimant didn’t want to report his vaccination status. He was aware of the requirements of the employer’s policy. He knew that if he didn’t disclose his vaccination status and get fully vaccinated against COVID-19, he would be placed on unpaid leave.^{Footnote 6}

[11] The Claimant was placed on leave without pay as of January 10, 2021.^{Footnote 7}

[12] For there to be misconduct under the Employment Insurance Act, the Commission has to show that the Claimant engaged in wilful conduct that he knew or reasonably should have known could get in the way of carrying out his duties to his employer and that there was a real possibility of being let go because of that.^{Footnote 8}

[13] Wilful conduct means that the conduct was conscious, deliberate, or intentional.^{Footnote 9} The Claimant doesn’t have to have wrongful intent (in other words, he doesn’t have to mean to be doing something wrong) for his behaviour to be misconduct under the law.^{Footnote 10}

[14] Before summarily dismissing an appeal, I must send written notice to the Claimant and allow him time to make submissions.^{Footnote 11}

[15] Given that the evidence on record shows that the Claimant chose not to comply with the employer’s vaccination policy and he was aware he could lose his job for that choice, I sent notice of my intention to summarily dismiss this appeal on October 17, 2022.^{Footnote 12} The Claimant provided additional submissions, which I have taken into consideration in this decision.^{Footnote 13}

[16] From the evidence on file, I see that the employer required the Claimant to report his vaccination status and be fully vaccinated against COVID-19 by January 10, 2022. The Claimant was notified of this policy. He was told that he would be placed on unpaid leave if he did not comply with the policy.

[17] The Claimant said that the employer’s policy wasn’t part of his employment contract at the time he was hired. Asking him to disclose his vaccination status is unreasonable, and requiring vaccination is unsafe since there are health concerns with the COVID-19 vaccines.

[18] The employer has a right to manage their daily operations, which includes the authority to develop and implement policies at the workplace. When the employer implemented this policy as a requirement for all of its employees, this policy became a condition of the Claimant’s employment.

[19] The Federal Court of Appeal has said that the Tribunal does not have to determine whether an employer’s policy was reasonable or a claimant’s dismissal was justified.^{Footnote 14} The Claimant may have other recourse to pursue his claims that the employer’s policy changed his employment conditions and conflicted with his right to privacy. But, these matters must be addressed by the correct court or tribunal. They are not within my jurisdiction to decide.

[20] It is well established that a deliberate violation of the employer’s policy is considered misconduct within the meaning of the Employment Insurance Act.^{Footnote 15}

[21] The Claimant chose not to comply with his employer’s policy. This refusal was intentional. As such, he was not in compliance with the employer’s policy. And, at the time he was let go, he had no intention to become compliant.

[22] If I accept the facts as true, there is no argument that the Claimant could make that would lead me to a different conclusion. There is no evidence that he could provide that would change these facts. As a result, I find his appeal is bound to fail, no matter what arguments or evidence he could bring to a hearing.^{Footnote 16} This means I must summarily dismiss his appeal. ^{Footnote 17}

Conclusion

[23] I find that the appeal has no reasonable chance of success; therefore the appeal is summarily dismissed.