Employment Insurance (EI)

Decision

[1] I am dismissing L. H.’s appeal.

[2] She didn’t comply with her employer’s mandatory COVID-19 vaccination policy. And her employer dismissed her because of that.

[3] The Canada Employment Insurance Commission (Commission) has proven that she lost her job for a reason the Employment Insurance Act (EI Act) considers misconduct. In other words, she did something that caused her to lose her job.

[4] This means she doesn’t qualify for Employment Insurance (EI) benefits.

[5] This is what Commission decided. So the Commission made the correct decision in her EI claim.

Overview

[6] The Claimant, who is a Registered Nurse, lost her job working as a Care Coordinator for the X (employer).^{Footnote 1}

[7] The Claimant’s employer said that it let her go because she didn’t comply with its mandatory COVID vaccination policy (vaccination policy).

[8] The Claimant doesn’t dispute this.

[9] The Commission accepted the employer’s reason for the dismissal. It decided that the Claimant lost her job because of misconduct. Because of this, the Commission disqualified her from receiving EI benefits.

[10] The Claimant says her conduct wasn’t misconduct. She shouldn’t be denied EI for misconduct because her employer medically discriminated against her. She has serious and long-lasting side effects from past vaccination. She was diligent and complied with her employer’s process for requesting a medical exemption. Yet her employer fired her while she was still waiting to see a specialist about an underlying autoimmune condition. She says her employer took Directive 6 to “extreme measures”.^{Footnote 2}

[11] I have to decide whether the reason the Claimant lost her job is misconduct under the EI Act.

Issue

[12] Did the Claimant lose her job because of misconduct?

Analysis

[13] The law says that you can’t get EI benefits if you lose your job because of misconduct.

[14] I have to decide two things.

• the reason the Claimant lost her job
• whether the EI Act considers that reason to be misconduct

The reason the Claimant lost her job

[15] I find the Claimant’s employer dismissed her because she didn’t comply with its vaccination policy.

[16] The Claimant and the Commission agree about this.

[17] It’s what the Claimant wrote on her EI application.^{Footnote 3} It’s what she told the Commission and testified to at the hearing.^{Footnote 4}

[18] It’s what her employer told the Commission and wrote in its termination letter to the Claimant.^{Footnote 5} And her employer used code M (dismissal or suspension) on her record of employment.^{Footnote 6}

[19] I have no reason to doubt what the Claimant says or what her employer says (when it talked to the Commission, and what it wrote in the record of employment and the termination letter.) And there is no evidence that goes against what the Claimant and her employer say.

The reason is misconduct under the law

[20] The Claimant’s refusal to comply with her employer’s vaccination policy is misconduct under the EI Act.

What misconduct means under the EI Act

[21] The EI Act doesn’t say what misconduct means. Court decisions set out the legal test for misconduct. The legal test tells me the types of facts and legal issues I must consider when making my decision.

[22] The Commission has to prove that it is more likely than not she lost her job because of misconduct.^{Footnote 7}

[23] I have to focus on what the Claimant did or didn’t do, and whether that conduct amounts to misconduct under the EI Act.^{Footnote 8} I can’t consider whether the employer’s policy is reasonable, or whether suspension and dismissal were reasonable penalties.^{Footnote 9}

[24] The Claimant doesn’t have to have wrongful intent. In other words, she doesn’t have to mean to do something wrong for me to decide her conduct is misconduct.^{Footnote 10} To be misconduct, her conduct has to be wilful, meaning conscious, deliberate, or intentional.^{Footnote 11} And misconduct also includes conduct that is so reckless that it is almost wilful.^{Footnote 12}

[25] There is misconduct if the Claimant knew or should have known her conduct could get in the way of carrying out her duties toward her employer, and knew or should have known there was a real possibility of being let go because of that.^{Footnote 13}

[26] I can only decide whether there was misconduct under the EI Act. I can’t make my decision based on other laws.^{Footnote 14} So, for example, I can’t decide whether the Claimant was wrongfully dismissed under employment law or decide if her employer breached a collective agreement. ^{Footnote 15} I can’t decide whether her employer discriminated against her or should have accommodated her under human rights law.^{Footnote 16} And I can’t decide whether her employer infringed her privacy or other rights in the employment context, or otherwise.

What the Commission and the Claimant say

[27] The Commission and the Claimant agree on the key facts in this case. The key facts are the facts the Commission has to prove to show that the Claimant’s conduct is misconduct under the EI Act.

[28] The Commission says that there was misconduct under the EI Act because the evidence shows:^{Footnote 17}

• the employer adopted a COVID vaccination policy, and communicated it to all staff^{Footnote 18}
• the vaccination policy sets two deadlines:
• for her to disclose her vaccination status (September 9, 2021)
• to be fully vaccinated against COVID and give her employer proof, or get an exemption (October 30, 2021)^{Footnote 19}
• she knew what she had to do^{Footnote 20}
• she also knew her employer could put her on unpaid leave or dismiss her if she didn’t get vaccinated and give proof, or wasn’t given an exemption, by the deadline^{Footnote 21}
• she applied for an exemption. But her employer denied her application. The employer’s occupational health and safety doctor reviewed her circumstances and communicated with her family doctor, who didn’t say she met the exemption criteria.^{Footnote 22}
• she didn’t get fully vaccinated and give proof to her employer by the deadline, which was a wilful and deliberate refusal to comply with the vaccination policy^{Footnote 23}
• her employer dismissed her because she didn’t comply with its vaccination policy^{Footnote 24}

[29] The Claimant says her conduct isn’t misconduct.^{Footnote 25} She says her employer took Directive 6 to “extreme measures”—she disagrees with the medical exemption criteria and disagrees with having to give her employer her personal health information.

[30] At the hearing she testified she didn’t agree with the Commission’s position that her conduct was intentional or reckless to the point of being wilful. She says she did everything she could to keep her job. She complied with every step in the medical exemption process. But her employer forced her to choose between her job and not getting vaccinated. And she chose not to get vaccinated by the deadline because she was waiting to see a specialist doctor about her autoimmune condition.

The Commission has proven misconduct under the EI Act

[31] I believe and accept the Claimant’s evidence and the Commission’s evidence for the following reasons.

[32] I have no reason to doubt the Claimant’s evidence (from her EI application, her reconsideration request, her appeal notice, and what she said at the hearing). Her story stayed essentially the same from her EI application through the hearing.

[33] And what she said is consistent with what the vaccination policy says, and what her employer wrote in the termination letter and on her record of employment.

[34] I accept the Commission’s evidence because it’s consistent with the Claimant’s evidence. And there is no evidence that contradicts the Commission’s evidence.

[35] Based on the evidence I have accepted, I find that the Commission has proven the Claimant’s conduct was misconduct because it has shown the Claimant:

• knew about the vaccination policy
• knew about her duty to get fully vaccinated and give proof (or get an exemption) by the deadline
• knew that her employer could dismiss her if she didn’t get vaccinated
• applied for an exemption, but her employer denied her an exemption
• consciously, deliberately, and intentionally made the decision not to get vaccinated by the deadline
• was dismissed from her job because she didn’t comply with the vaccination policy

The Claimant’s other argument: her employer medically discriminated against her

[36] The Claimant said that her employer discriminated against her when it put her on unpaid leave then dismissed her.^{Footnote 26} She calls this “medical discrimination” because she has an autoimmune condition and has long-term side effects from getting the H1N1 vaccination.

[37] The Claimant argues she had a right to choose not to get vaccinated at least until she could consult a specialist doctor about the safety of COVID vaccination for her. Her employer should have accommodated her unique medical circumstances—it had done so in the past in terms of scheduling. She was willing to wear PPE and not come to work if she was feeling sick. Instead, her employer stuck to the narrow medical exemptions in Directive 6, and the deadline it had set for full vaccination. It discriminated against by placing her on unpaid leave and dismissing her before she saw a specialist.

[38] I accept what the claimant wrote in her documents, said to the Commission and testified to at the hearing about her medical circumstances. There is no evidence that goes against what she said and wrote. So I have no reason to doubt her evidence on this point.

[39] I think the Claimant’s medical discrimination argument might succeed under human rights law. Unfortunately for the Claimant, I can’t consider this argument in her EI appeal.^{Footnote 27} I have to consider whether her conduct is misconduct under the EI Act. I can’t consider whether the vaccination policy her employer adopted, its application of the policy to her circumstances, or the penalty it imposed on her infringed her rights under human rights law.

[40] The courts have rightly pointed out that there are other legal avenues for a claimant to raise human rights arguments.^{Footnote 28} The raises the medical discrimination argument in a grievance she has filed against her employer.^{Footnote 29}

Summary of my finding about misconduct

[41] After considering and weighing all the documents and testimony, I find the Commission has shown the Claimant lost her job because of misconduct under the EI Act.

Conclusion

[42] The Commission has proven that the Claimant lost her job because of misconduct under the EI Act

[43] Because of this, the Claimant is disqualified from receiving EI benefits.

[44] This means the Commission made the correct decision in her EI claim.

[45] So I am dismissing her appeal.