A nursing home worker who refused to get vaccinated against COVID-19 after her religious accommodation expired cannot receive Employment Insurance benefits for most of the period she was off work, the Social Security Tribunal of Canada has ruled.
The Appeal Division found that K.J., who worked in housekeeping at an Alberta nursing home, committed misconduct when she failed to comply with her employer’s vaccination policy after her religious exemption ended on May 31, 2022.
The tribunal allowed her appeal in part, ruling she was entitled to benefits from January 9, 2022, to May 31, 2022 — the period when she had an approved religious accommodation. However, she was denied benefits from June 1, 2022, onward due to misconduct.
Religious exemption initially approved
K.J. stopped working in November 2021 and applied for EI benefits on January 12, 2022. Her employer had implemented a COVID-19 vaccination policy on September 13, 2021, requiring all employees to be fully vaccinated by October 31, 2021, with the deadline later extended to November 30, 2021.
The policy warned that employees who failed to comply would face “unpaid administrative leave” and potential termination after January 10, 2022, unless they had an approved workplace accommodation.
K.J. requested a religious exemption on October 12, 2021, explaining that the vaccines were developed using fetal cell lines, which conflicted with her Christian Lutheran beliefs. The employer approved her request on November 26, 2021.
The accommodation initially placed her on unpaid leave from December 1, 2021, to February 28, 2022, with the possibility of extension. In February 2022, the employer modified the arrangement to allow K.J. to work from home two days per week on clerical tasks.
Accommodation withdrawn over new vaccine
The situation changed in April 2022 when the employer informed K.J. that a new vaccine called Novavax was available that “didn’t use any fetal cell lines.” The employer scheduled a meeting to discuss whether she still qualified for accommodation.
K.J. disagreed with the employer’s assessment of the Novavax vaccine and submitted another request for religious exemption. The employer rejected this request on May 17, 2022, and informed her that her accommodation would end on May 31, 2022.
The employer’s letter stated: “there is no basis by which you continue to require accommodation from the requirements of the Policy.” It warned that she would be placed on unpaid administrative leave starting June 1, 2022, to allow time for vaccination, and would be terminated on July 4, 2022, if she failed to comply.
Tribunal finds misconduct after accommodation ended
The tribunal concluded that K.J.’s conduct constituted misconduct for EI purposes once her religious accommodation expired. The decision explained that misconduct under the Employment Insurance Act requires “wilful” conduct — meaning conscious, deliberate or intentional behaviour.
“The Claimant knew or ought to have known that her decision to not get vaccinated after May 31, 2022, would result in her suspension from work,” the tribunal stated.
The ruling emphasized that K.J.’s decision not to vaccinate was voluntary, citing her own letter to the employer where she wrote that “informed consent means I am free to make a decision without coercion.” A letter from her pastor also stated that individuals need to be “guided by their conscience and God’s word in making their personal decision regarding the vaccine.”
Suspension versus administrative leave
K.J. argued that she was not “suspended” for misconduct but was instead placed on “unpaid administrative leave.” The tribunal rejected this distinction, finding that the leave was “disciplinary in nature and akin to a suspension for misconduct for the purposes of EI benefits.”
The tribunal considered several factors in reaching this conclusion: the employer initiated and imposed the leave; it was unpaid; K.J. had no choice and couldn’t return to work; she couldn’t continue her part-time home work; there was no return date; and she was warned about termination.
Legal framework limits tribunal’s scope
The tribunal noted it could not consider whether the employer made a “mistake” about the Novavax vaccine’s development. K.J. had argued the tribunal should find the employer erred in concluding the vaccine wasn’t linked to fetal cell lines.
“I’m not an expert in vaccines, so I don’t know whether the Novavax vaccine was linked or not linked to fetal cell lines,” the tribunal stated. It emphasized that federal court decisions have “clearly stated that the focus is on the Claimant’s conduct, not the employer’s conduct.”
The ruling explained that if K.J. was wronged by her employer’s decision to reject her religious exemption, “this Tribunal is not the forum to address that issue.”
Benefit periods broken down
The tribunal divided K.J.’s case into three distinct periods:
From January 9 to May 31, 2022: K.J. was entitled to benefits because she had an approved religious accommodation and wasn’t in breach of the employer’s policy.
From June 1 to July 3, 2022: K.J. was “disentitled” to benefits because she was suspended from work due to misconduct. Under the EI Act, suspensions due to misconduct result in disentitlement rather than disqualification.
From July 4, 2022, onward: K.J. was “disqualified” from benefits because she was dismissed for misconduct. The employer terminated her employment for “failure to comply with the policy” after she confirmed she had no intention of becoming vaccinated.
The Canada Employment Insurance Commission had initially decided K.J. was disqualified from benefits for the entire period, resulting in a notice of debt for overpayment. The General Division had dismissed her appeal, but the Appeal Division found the lower tribunal made errors of law and fact by failing to consider the distinct periods and the nature of her suspension.
For more information, see KJ v Canada Employment Insurance Commission, 2025 SST 256 (CanLII).
