Throughout the COVID pandemic, unvaccinated Canadians dismissed by their employer were not entitled to unemployment benefits. Legal experts say those still fighting in court likely would not observe a reversal of that decision.
A federal court decision on January 23 stated that an Ontario man could not receive Employment Insurance (EI) benefits after losing his healthcare job for not complying with his employer's mandatory COVID jab and testing policy.
Anthony Cecchetto is a former employee at Lakeridge Health in the Greater Toronto Area. In September of 2021, he went on unpaid leave, which led to his eventual dismissal a month later.
According to the ruling, Service Canada denied his EI application in October 2021, citing "misconduct," which led to his termination. Upon seeking a judicial review of an earlier decision by the Social Security Tribunal, he could not collect EI benefits as an unvaccinated employee.
Federal Court Justice William Pentney said that Cecchetto "has not put forward any legal or factual argument that persuades me that the Appeal Division’s decision is unreasonable."
COVID jab mandates across Canada caused thousands of workers to lose jobs or be put on unpaid leave.
Employment and Social Development Canada warned Canadians in October 2021 that unvaccinated workers couldn't access EI benefits.
Employment Minister Carla Qualtrough said disobeying vaccine policies is equivalent to "non-compliance" in EI claims.
"A fundamental principle of the EI program is that claimants have to lose their employment for no fault of their own — and this would be seen typically as a choice," she said in an interview with Global News.
In Prince George, British Columbia, city administration placed 16 unvaccinated workers on unpaid leave in January 2022.
Those who did not receive the COVID jab twice or chose not to disclose their vaccination status faced termination. Ultimately city officials reversed the decision and allowed the affected staff to resume work on January 16, 2023.
The federal government officially lifted its vaccine mandate in June 2022.
Many Canadians unsuccessfully challenged their dismissals and the subsequent EI disqualifications in court, which came as no surprise to Jon Pinkus, an employment lawyer in the GTA with Samfiru Tumarkin LLP.
"Employment insurance is a federal scheme, so this applies across the country in that sense," said Pinkus, who noted that the law would consider vaccination and testing differently.
"There was also a decision where an employee who had not been given the alternative of testing to vaccination was deemed to be entitled to employment insurance, and that was deemed not misconduct," he said.
Lawyers say that employees let go without a government mandate should be entitled to compensation, making COVID mandates a thorny issue, polarizing Canadians.
Former Finance Minister Bill Morneau publicly condemned Prime Minister Justin Trudeau and his government in January for "polarizing" Canadians by making COVID mandates a wedge issue.
Despite the mandates imposed, employment lawyer Michael Stitz said the mandate did not exclude affected unvaccinated employees from receiving severance, which he said would harm vulnerable people.
"Employment Insurance is not a one-size-fits-all scenario," said Stitz.
As for wrongful dismissals and denying severance, Pinkus said there isn't a legal consensus on whether an employer can terminate an employee not getting the jab.
"In scenarios where employees have legitimate health reasons, and their employment was terminated, for example, it could certainly result in unfairness," he said.
"There is no precedent of an employer asserting that an employee has been guilty of gross misconduct due to essentially declining a form of medication."
During the pandemic, the federal government employed a national benchmark of 420 insurable hours to qualify for EI benefits. In September 2022, they reverted to the original framework.