The short answer is – maybe.
The government outlines the “Digest of Benefit Entitlement Principles” on their website.
https://www.canada.ca/en/employment-social-development/programs/ei/ei-list/reports/digest.html
You would be correct in concluding that you may need an employment lawyer to apply your personal details to the situation. Importantly you want to dismiss allegations of misconduct. Furthermore, you can request to backdate your EI claim if more than 4 weeks have gone by.
To make this more real, let’s introduce a fictitious person as an example. For interest’s sake, let’s say that our example is a male named Justin. 🙂
Here are the main points for part 1 of Justin’s supporting documentation:
Three conditions are required for regular EI benefits [Section 1.1.5]:
1. Situation is outside Justin’s control: Leave without pay, or loss of income, for noncompliance with the federal vaccination policy is outside Justin’s control because he has no say in his employer’s policies
2. Currently seeking employment: Justin is seeking short-term or long-term employment opportunities as he continues to engage in his risk-benefit assessment, which unreasonably involves “the ability to maintain one’s livelihood” as a core benefit (He doesn’t want to cut himself off entirely from the federal government, plus he feels that the policy is not going to hold come next spring)
3. Willing and available for work: He is ready to work for any potential employer, including his current employer
Two conditions for which any allegation of misconduct could be dismissed relevant to noncompliance with a vaccination policy in the workplace
1. Regarding insubordination [Section: 7.3.2]: Refusal or disobedience by an employee with regard to carrying out an order, instruction, regulation or any other expression of authority used by an employer.
Not obeying to the federal vaccination policy cannot be considered insubordination since Justin “finds it impossible, in all conscience, to follow [this] policy”, at this time, especially given the limitations of vaccination (e.g., safety concerns, lack of long-term effectiveness, inappropriate approach to put an end to the pandemic), and the availability of “other reasonable alternatives [that] exist which could have remedied the situation.” [In the discussion section, Justin will be including prevention through nutraceuticals and early treatments as alternative approaches; for example, see protocols at https://covid19criticalcare.com/covid-19-protocols/i-mask-plus-protocol/ and at https://aapsonline.org/covidpatientguide/ ]
2. Regarding breach of rules in terms of safety rules [Section: 7.3.4.2]: There are two possible scenarios for this type of misconduct:
(1) violating a safety regulation, or not following safety rules deliberately or when the claimant clearly should have known better, and real danger was present;
– In terms of the first scenario (from the employer’s perspective) where the safety rule is vaccination, the question is whether Justin, not being vaccinated, would pose a serious health risk to his co-workers
– Even if Justin were to be vaccinated, he could still get infected, possibly with mild symptoms, and may unknowingly spread the virus to his co-workers, regardless of their vaccination status
– If Justin were to get infected while being unvaccinated, with noticeable symptoms (e.g., fever, cough), he would more likely know to stay at home until fully recovered with early home treatment, and then he will have acquired natural immunity
– Justin, now with natural immunity that provides much broader and longer-lasting protection, will actually be contributing to ending viral spread, and he will not have to worry about variants
(2) objecting to carrying out a job requirement due to safety concerns, capriciously or when other reasonable alternatives were available to comfortably meet that requirement but were not used [this is actually mentioned by way of an example regarding the use of a vehicle or machinery, but through deductive reasoning, the essence of it could be made applicable to Justin’s situation]
– In applying the second scenario (from the claimant’s perspective) regarding safety concerns, Justin’s noncompliance with the federal vaccination policy (i.e., the job requirement) stems from real and perceived serious safety concerns about vaccination, “as opposed to capriciousness”.
– The availability of reasonable alternatives, in the case of a breach of rules, has a different connotation than in the case of insubordination. It is about whether alternative approaches to address safety concerns could have been used to carry out the job requirement but were not followed, thereby constituting a misconduct.
– However, in Justin’s case, existing alternative approaches were indeed welcomed to address safety concerns about vaccination and carry out the essential job requirement (i.e., ensuring the health and safety of employees in the workplace) but these approaches are not yet being recognized by his employer.
Additional considerations: If Justin has been on leave without pay for more than 4 weeks and did not think he could apply for EI benefits, it is not too late [Section 3.2]: Certain conditions for “antedate” exist
- Justin could state that he was aware that his employer dismissed/suspended him due to an allegation of misconduct, which disentitles an employee from receiving employment insurance benefits
- He could also state that he has only recently been made aware that the Employment Insurance Commission makes their own determination regarding any allegation of misconduct after examining all the facts for each individual EI application
- Alternatively, the benefits from an approved claim can begin from the time the claim was submitted (after submitting this claim, it is possible to include a note stating that supporting documentation is to follow)
