Ontario Man Denied EI Benefits Over COVID Vaccine Launches Appeal

A nurse prepares a COVID-19 vaccine in Toronto on March 23, 2021. Cole Burston/Getty Images

An engineer and father of four says it isn’t right he was denied employment insurance (EI) because he didn’t get the COVID-19 vaccine.

Robin Francis has a PhD in engineering and worked at the London Health Sciences Centre in London, Ont., until he was fired for not getting vaccinated.

He worked mostly from home and didn’t feel he posed a health risk to others, according to a Justice Centre for Constitutional Freedoms release. He was willing to undergo regular COVID testing and follow other public health precautions.

The Canada Employment Insurance Commission said his refusal to take the vaccine constituted “willful misconduct,” so it denied him EI. The Social Security Tribunal of Canada upheld this decision.

Francis filed an appeal to the Federal Court of Appeal in Toronto on March 22.

“In this case, the Tribunal appears to be saying that no matter what an employer’s workplace policy requires, ... failure to abide by that policy means that the employee must also lose their EI benefits if they are terminated by their employer,” James Manson, counsel for Francis, said in the release.

“That is far too draconian a result. It simply does not accurately reflect the state of the law in Canada on this issue, and I am confident that the Federal Court of Appeal will agree,” Manson said.

Manson also argues that the vaccination policy is a violation of Charter rights, of individual freedoms.

Ineligible ‘in Most Cases’

The federal government updated its EI policy on Oct. 15, 2021 to include rules regarding refusal to comply with employer vaccination policies, according to labour and employment law firm Emond Harnden.

The EI policy states that, “in most cases, if you lose or quit your job because you didn’t comply with your employer’s mandatory COVID-19 vaccination policy, you won’t be eligible for EI regular benefits.”

The government instructed employers with vaccination mandates to document the vaccination status of employees and give that information to Employment and Social Development of Canada so it can exclude the unvaccinated from EI, according to another law firm, KCY at Law.

An employee must be “at fault” for their termination to be denied EI, KCY says, however the wrongdoing must be serious. “A serious wrongdoing is legally defined as an act or omission that produces serious danger to the life, health, or safety to a person or the environment, not including the dangers that already exist in the workplace.”

An employee in Francis’s position would have to prove there was just cause for leaving his employment relationship, KCY says. “For example, if the employer refused acceptable accommodation, the employee would not be at fault, and potentially authorized to receive EI.”