Many Canadian employees who were suspended without pay or fired for refusing vaccination have had their personal health decisions labeled as “misconduct” and been denied Employment Insurance (EI) benefits by the government.
On Dec. 14, 2022, the Social Security Tribunal of Canada (SST) released a decision overturning the Canadian Employment Insurance Commission’s denial of EI benefits to a former hospital administration employee who was dismissed for refusing to receive a COVID-19 vaccine in November 2021.
The claimant did not want to take the risk of being vaccinated due to her health conditions, including having had cancer as a child and negative reactions to anesthetic during surgery, and wanted to wait until more information was available about the safety of the vaccine. The Commission reviewed her case and found she lost her work “due to her own misconduct”, and therefore denied her EI benefits.
The Tribunal decided that the employee had no explicit or implicit duty to be vaccinated arising out of her employment contract. The employment contract was a collective agreement, which included a provision regarding influenza vaccination stating that employees had the right to refuse any vaccination.
The Tribunal found that the employer unilaterally imposed a new essential condition of employment on the claimant without her agreement or the agreement of her union.
The Tribunal also found that since the Ontario Chief Medical Officer of Health’s Directive #6 for Public Hospitals leaves the decision whether or not to require vaccination of employees up to individual hospitals, there exists no specific legislation or directives obligating individuals to be vaccinated.
The Tribunal concluded that the Commission had not met the burden of proof to substantiate that the claimant breached an expressed or implied duty owed to the employer when she chose not to be vaccinated or provide an exemption.
Since there was no duty to be vaccinated, the denial of EI benefits was overturned.
The decision ends with a section discussing the individual rights of the claimant not to be vaccinated. The Tribunal Member noted that it is well founded in Canadian common law that an individual has the right to control what happens to their bodies and has the final say in whether they accept any medical treatment:
[79] Indeed, I could not find a single case where a claimant did something for which a specific right, supported in law, exists, and subsequently that action was still found to be misconduct simply because it was deemed willful.
[80] In the absence of a FCA decision that provides such guidance, I am persuaded that the Claimant has a right to choose whether to accept any medical treatment. Despite that fact that her choice contradicts her Employer’s policy, and led to her dismissal, I find that exercising that “right” cannot be characterized as a wrongful act or undesirable conduct sufficient to conclude misconduct worthy of the punishment of disqualification under the EI Act.
Given the expressed rights of the claimant not to be vaccinated if she so chose, the Member found her decision not to constitute misconduct under the Employment Insurance Act.
