Oct 2021 Charity & NFP Law Update
Published on October 28, 2021
By Barry W. Kwasniewski and Martin U. Wissmath
Employers must issue a record of employment (“ROE”) for employees who experience any interruption in their earnings because of the COVID-19 pandemic. Employment and Social Development Canada (“ESDC”) updated their “EI Information for employers — COVID-19” webpage (the “ROE Guidance”) on October 15, 2021, with additional information about the requirements for ROEs issued when an employee’s work is interrupted because they do not comply with a mandatory COVID-19 vaccination policy. This includes employers of charities and not-for-profits that have implemented COVID-19 mandatory vaccination policies.
Any interruption of earnings due to COVID-19 for an employee triggers the ROE requirement deadline. If issuing a paper ROE, it must be issued within five calendar days of the first day of an interruption of earnings; or the day the employer becomes aware of an interruption of earnings. If issuing electronic ROEs and the pay period is weekly, every two weeks, or twice a month, the employer has five calendar days after the end of the pay period in which the employee’s interruption of earnings occurs to issue the electronic ROE. For a monthly pay period or 13 pay periods per year (every four weeks), the employer must issue electronic ROEs on the earlier of:
- five calendar days after the end of the pay period in which an employee experiences an interruption of earnings; or
- 15 calendar days after the first day of an interruption of earnings.
Block 16 of the ROE “should indicate the reason for the employee’s leave or separation from employment, or the reason why the ROE is being issued”, according to the ROE Guidance, which states that comments should not be added “unless absolutely necessary.” The ROE Guidance lists alphabetic codes for the COVID-19–related reasons the employee’s earnings have been interrupted:
- Code A (shortage of work) when the business has decreased operations or closed;
- Code D (illness or injury) when the employee is sick or quarantined;
- Code E (quit) or Code N (leave of absence) when the employee does not report to work because they refuse to comply with the employer’s mandatory COVID-19 vaccination policy
- Code M (dismissal) when the employer suspends or terminates the employee for not complying with the mandatory COVID-19 vaccination policy
If an employer uses these codes, they may be contacted by ESDC to determine:
- if the employer had adopted and clearly communicated to all employees a mandatory COVID-19 vaccination policy;
- if the employees were informed that failure to comply with the policy would result in loss of employment;
- if the application of the mandatory COVID-19 vaccination policy to the employee was reasonable within the workplace context; or
- if there were any exemptions for refusing to comply with the policy
With these requirements in mind, employers of charities and not-for-profits should consider having COVID-19 vaccination policies in place, which must be reasonable within the workplace context, allow for legally permitted exemptions, and clearly communicated to all employees with any consequences for breach of requirements, including whether failure to comply with requirements for receiving COVID-19 vaccination could result in suspension, an unpaid leave of absence or termination.
Read the October 2021 Charity & NFP Law Update
