Employment and Social Development Canada (the “ESDC”) recently updated their guidelines for issuing Records of Employment (“ROE”) to assist employers in issuing ROEs for employees during the COVID-19 pandemic. These changes address employees who have quit or have been terminated for failing to comply with an employer’s vaccination policy in the workforce.
Before discussing these new changes, we will briefly review an employer’s obligation to provide an ROE.
What is a Record of Employment or ROE?
An ROE is an ESDC document that provides information on an individual’s employment history with an organization including insurable earnings and insurable hours. The ESDC uses the information on the ROE to determine whether someone is eligible for Employment Insurance Benefits. Employers are required to issue an ROE whenever someone stops working. The ROE must be issued within five calendar days after the employee experiences an interruption of earnings, regardless of the reason why the employee stopped working (i.e., termination, resignation, layoff).
ROEs may be submitted electronically or in paper form.
An ROE may be submitted electronically three ways through:
- ROE Web by using compatible payroll software to upload ROEs from your payroll system
- ROE Web by manually entering data online through Service Canada’s website
- Secure Automated Transfer (SAT), which is performed on your behalf by a payroll service provider using bulk transfer technology.
The ESDC has developed temporary simplified measures to help employers complete the ROE Web registration process to submit ROEs electronically. Employers and primary officers who can’t authenticate and validate their identity through their CRA account or in person at a Service Canada Centre can temporarily validate their identity online to complete the registration process.
A paper ROE is a one-page form completed in triplicate, with the first being the original and the second and third being carbon copies. The forms must be distributed as follows:
- Part 1 is given to the employee who will use the copy to apply for Employment Insurance Benefits
- Part 2 (the blue copy) is given to Service Canada
- Part 3 is kept for the employer’s records
The New Guideline Changes
Block 16 – Reason for Issuing an ROE
Block 16 of the ROE indicates the reason for the employee’s leave or separation from employment or the reason why the ROE is being issued.
Pursuant to the new guidelines, when the employee is no longer working because the business has decreased operations or closed due to COVID-19, employers should use code A (shortage of work).
When the employee is sick or quarantined, employers should use code D (illness or injury).
The guidelines specifically indicate not to “add comments unless absolutely necessary.”
Many employers have introduced vaccine mandates into their workforce pursuant to legislative or other requirements. The ESDC has changed the codes to be entered on ROEs where employees refuse to comply with such vaccine mandates, as follows:
When the employee doesn’t report to work because they refuse to comply with an employer’s mandatory COVID-19 vaccination policy, employers should use code E (quit) or code N (leave of absence).
When an employer suspends or terminates an employee for not complying with their mandatory COVID-19 vaccination policy, employers should use code M (dismissal or suspension).
The ESDC may contact employers to determine:
- if the employer 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 policy to the employee was reasonable within the workplace context
- if there were any exemptions for refusing to comply with the policy
This is a significant change as employees who quit, took a leave of absence, or were dismissed for failing to comply with an employer’s vaccine mandate may now potentially be disqualified from receiving Employment Insurance Benefits, even though the employee has been paying into the Employment Insurance Benefits fund. Employees are typically only disqualified from receiving Employment Insurance Benefits when they have quit their job or there was just cause to terminate their employment, a high threshold that can often be difficult for employers to meet.
It remains to be seen how these guideline changes may be viewed through a human rights law lens, however, the Ontario Human Rights Tribunal has already ruled in favour of vaccine mandates in the workforce.
Canada Emergency Wage Subsidy
If an employer is paying employees with the Canada Emergency Wage Subsidy (CEWS), ROEs are only issued for those who have an interruption of earnings when the CEWS ends.
If an employee is still off work when their CEWS ends, they can apply for Employment Insurance Benefits. If they do, ESDC will use their ROEs to determine if they qualify for Employment Insurance Benefits. It is important that the ROE accurately reports all earnings, including the CEWS, and all hours worked.
Employees who are in insurable employment before receiving CEWS continue to be in insurable employment once in receipt of the CEWS, if that is the only thing that has changed. The guidelines state that this remains true even if the employee is not working while receiving the CEWS.
Contact the Employment Lawyers at Baker & Company in Toronto for Assistance with Records of Employment
At Baker & Company, our exceptional team of employment lawyers provides advice to both employers and employees at all stages of the employment relationship. We regularly advise clients on issues relating to employee policies, severance packages, and wrongful dismissal. If you have questions about termination, resignation, terminating an employee, or issuing or receiving an ROE we are here to help. To speak with a lawyer, contact us online or by phone at 416-777-0100.