ARCHIVED — Vol. 147, No. 6 — March 13, 2013

Registration

SOR/2013-26 February 28, 2013

EMPLOYMENT INSURANCE ACT

Regulations Amending the Employment Insurance Regulations

P.C. 2013-172 February 28, 2013

RESOLUTION

The Canada Employment Insurance Commission, pursuant to paragraphs 54(a) (see footnote a) and (s) and section 153.1 (see footnote b) of the Employment Insurance Act (see footnote c), makes the annexed Regulations Amending the Employment Insurance Regulations.

January 18, 2013

IAN SHUGART
Chairperson
Canada Employment Insurance Commission

MARY-LOU DONNELLY
Commissioner (Workers)
Canada Employment Insurance Commission

JUDITH ANDREW
Commissioner (Employers)
Canada Employment Insurance Commission

His Excellency the Governor General in Council, on the recommendation of the Minister of Human Resources and Skills Development, pursuant to paragraphs 54(a)(see footnote d) and (s) and section 153.1(see footnote e) of the Employment Insurance Act(see footnote f), approves the annexed Regulations Amending the Employment Insurance Regulations, made by the Canada Employment Insurance Commission.

REGULATIONS AMENDING THE EMPLOYMENT
INSURANCE REGULATIONS

AMENDMENTS

1. Section 38 of the Employment Insurance Regulations (see footnote 1) is renumbered as subsection 38(1) and is amended by adding the following:

(2) However, the portion of any payments referred to in subsection (1) that are paid to a claimant in respect of a week during which benefits are payable to the claimant by reason of illness, injury or quarantine is considered earnings for the purposes of section 35.

2. The Regulations are amended by adding the following after section 76.42:

WAIVING OF THE WAITING PERIOD

76.421 The reference in paragraph 40(6)(b) to “allowances, payments or other moneys are payable to the claimant by the claimant’s employer or former employer as sick leave pay” shall be read as a reference to “allowances, payments or other moneys were payable to the claimant by the claimant’s employer or former employer as sick leave pay or provincial benefits were paid to the claimant”.

3. Section 93 of the Regulations is amended by adding the following after subsection (4):

(4.1) A claimant to whom benefits are payable under subsection 23(1) of the Act and whose claim for benefits because of illness, injury or quarantine is made for a week that begins on or after the day on which this subsection comes into force is not disentitled under paragraph (4)(a) for failing to prove that they would have been available for work were it not for the illness, injury or quarantine.

COMING INTO FORCE

4. These Regulations come into force on the day on which sections 15, 16 and 21 of the Helping Families in Need Act, chapter 27 of the Statutes of Canada, 2012, come into force, but if they are registered after that day, they come into force on the Sunday after the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issue

Employment insurance (EI) sickness, maternity, parental and compassionate care benefits (special benefits) play an important role in supporting workers and their families. In addition to 15 weeks of maternity benefits that are payable to birth mothers, up to 35 weeks of parental benefits can be shared by parents caring for a newborn, or a newly adopted child or children.

The Employment Insurance Act (EI Act) also provides sickness benefits to claimants who demonstrate that they are unable to work because of a prescribed illness, injury or quarantine. To receive sickness benefits, insured persons must also show that, but for their illness or injury, they would be “otherwise available for work.” Self-employed persons must “otherwise be working” and have ceased working because of their illness or injury. As a result, claimants in receipt of EI parental benefits cannot receive sickness benefits as they are not considered otherwise available for work.

The Helping Families in Need Act, which received Royal Assent on December 14, 2012,amends the EI Act to waive this requirement and allow EI parental benefits claimants to qualify for EI sickness benefits if they fall ill or are injured.

Three amendments to the Employment Insurance Regulations (EI Regulations) are necessary to fully implement the initiative to enhance access to EI sickness benefits for EI parental benefit claimants and ensure all claimants are treated the same.

First, the EI Regulations provide that subject to specified criteria, portions of certain types of payments, such as those received by a claimant from his or her employer to care for a newborn, or adopted child or children, are excluded as earnings for the purposes of determining the amounts that are to be deducted from EI benefits payable. This allows an employer to “top up” EI parental benefits paid to a claimant without resulting in a reduction of those benefits. However, without an amendment to the EI Regulations, claimants would be able to switch their claim from EI parental benefits to sickness benefits but continue to receive parental benefit top-ups from their employer without seeing a reduction in their EI sickness benefits. This is inconsistent with the treatment of earnings for claimants in receipt of EI sickness benefits. An amendment is required to ensure that all claimants receiving EI sickness benefits are treated the same.

Second, the EI Regulations allow insured persons who have accumulated at least 600 hours of insurable employment in their qualifying period to access EI special benefits despite not having enough hours that would normally be required to qualify for regular benefits. This provision allows New Entrants and Re-entrants (NEREs), who normally need 910 hours of insurable employment, to qualify for regular benefits, and claimants living in regions where more than 600 hours of insurable employment is required to qualify for special benefits with only 600 hours of insurable employment. However, these claimants are not entitled to sickness benefits if they cannot prove that they would “otherwise be available for work.” An amendment is necessary to waive the “otherwise available for work” requirement for these claimants and align the EI Regulations with the amendments in the Helping Families in Need Act.

A third amendment is needed to ensure that self-employed persons are treated the same as insured persons with regard to the waiting period when switching from one benefit to another. The EI Regulations already allow the two-week waiting period to be waived for insured persons who have been paid benefits under a provincial plan (e.g. the Quebec Parental Insurance Plan), should they qualify for EI sickness benefits in the same benefit period. However, the EI Regulations do not provide for similar treatment for self-employed persons. An amendment is required to ensure that self-employed persons who have been paid benefits under a provincial plan and who, in the same benefit period, claim EI sickness benefits do not have to serve a waiting period in respect of their sickness benefit claim.

Objectives

Support full implementation of the amendments to the EI Act to provide enhanced access to EI sickness benefits for claimants in receipt of EI parental benefits.

Description

The EI Regulations are amended to

  • specify that the amounts received by claimants which would normally not be considered earnings when receiving parental benefits, i.e. a top-up of parental benefits paid by an employer, are to be treated as earnings during weeks where EI sickness benefits are payable (instead of parental benefits) and thus are to be deducted from the sickness benefits payable;
  • allow EI parental benefit claimants who qualify for special benefits with only 600 hours of insurable employment (e.g. NEREs or persons living in regions where more than 600 hours are required to qualify for regular benefits) to qualify for sickness benefits despite not being “otherwise available for work”; and
  • mirror, for self-employed persons, the existing provision for insured persons, which allows the waiting period to be waived where provincial benefits (e.g. Quebec Parental Insurance Plan) have been paid and a claim for EI sickness benefits is made during the same benefit period.
“One-for-One” Rule

The “One-for-One” Rule does not apply because the amendments impose no administrative burden on employers.

Small business lens

The small business lens does not apply to the amendments, as there are no additional costs on small business.

Rationale

Overall, the changes made to the EI Act to enhance access to sickness benefits for EI parental benefit claimants ensure flexibility of EI special benefits and responsiveness of the EI program. The regulatory amendments support the full implementation of these changes by ensuring all claimants are treated the same.

The first amendment is in line with the existing EI provisions, which provide that earnings received by a claimant while in receipt of sickness benefits shall be deducted from EI benefits payable for that week. This amendment ensures all sickness claimants are treated the same. Service Canada will inform claimants to ask their employer to suspend the payment of their parental benefit top-ups while they are in receipt of EI sickness benefits to ensure that their sickness benefits are not reduced.

The second amendment is necessary to fully implement the enhanced access to sickness benefits initiative for EI parental benefit claimants. Without this amendment, certain claimants in receipt of EI parental benefits, such as NEREs, would not be entitled to sickness benefits if they fall ill or are injured during their parental claim unless they were able to prove they were “otherwise available for work.”

The third amendment described above ensures equity between insured persons and self-employed persons who have been paid provincial benefits, by allowing self-employed persons to have their two-week waiting period waived when they subsequently claim EI sickness benefits in the same benefit period.

Approximately 6 000 claimants per year are expected to benefit from the changes made to the EI Act and the EI Regulations. Total EI benefits paid are expected to reach $30 million in 2017–2018 and ongoing, which represents an average of $5,000 in EI benefits paid per claimant. From a gender perspective, the initiative could be important to women, who make up 90% of the population expected to benefit.

Implementation, enforcement and service standards

Existing implementation and enforcement mechanisms contained in Human Resources and Skills Development Canada’s adjudication and control procedures will ensure that these regulatory amendments are implemented effectively and efficiently.

Contact

Jean-François Roussy
Director
Self-Employed, Special Benefits and Horizontal Policy
Employment Insurance Policy
Skills and Employment Branch
Human Resources and Skills Development Canada
140 Promenade du Portage
Gatineau, Quebec
K1A 0J9
Telephone: 819-956-3717
Fax: 819-934-6631
Email: jeanfrancois.roussy@hrsdc-rhdcc.gc.ca