Regulations Amending the Employment Insurance Regulations: SOR/2020-44

Canada Gazette, Part II, Volume 154, Number 7

Registration
SOR/2020-44 March 11, 2020

EMPLOYMENT INSURANCE ACT

P.C. 2020-153 March 11, 2020

RESOLUTION

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

February 7, 2020

Graham Flack
Chairperson
Canada Employment Insurance Commission

Pierre Laliberté
Commissioner (Workers)
Canada Employment Insurance Commission

Judith Andrew
Commissioner (Employers)
Canada Employment Insurance Commission

Her Excellency the Governor General in Council, on the recommendation of the Minister of Employment and Social Development, pursuant to paragraphs 54(a) footnote a and (y) of the Employment Insurance Act footnote b, approves the annexed Regulations Amending the Employment Insurance Regulations, made by the Canada Employment Insurance Commission.

Regulations Amending the Employment Insurance Regulations

Amendments

1 (1) Subsection 40(1.1) of the Employment Insurance Regulations footnote 1 is repealed.

(2) Subsections 40(7) to (9) of the Regulations are repealed.

2 The Regulations are amended by adding the following after section 40:

40.1 (1) Despite subsection 40(1), if any of the following circumstances occurs in respect of a quarantine, a claimant need only provide the Commission with a declaration that

(2) The Commission may waive the waiting period in respect of the benefit period of a claimant if

(3) Subsections (1) and (2) apply to a claimant for any benefit period

3 Section 40.1 of the Regulations is repealed.

Coming into Force

4 (1) These Regulations, except section 3, come into force on the day on which they are registered.

(2) Section 3 comes into force on the 180th day after the day on which these Regulations are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

The outbreak of the COVID-19 acute respiratory disease in China has resulted in thousands of confirmed cases of the disease and the quarantine of several Canadians. Currently, there is a one-week waiting period for people who qualify for employment insurance (EI) sickness benefits to begin receiving benefits. People are quarantined to avoid the spread of communicable diseases. Maintaining the one-week waiting period may incentivize people to avoid quarantine, risking the spread of the disease.

Background

On January 30, 2020, the World Health Organisation (WHO) declared an outbreak of what is now known as COVID-19 acute respiratory disease to be a public health emergency of international concern (PHEIC).

The COVID-19 acute respiratory disease is a condition in which affected individuals develop fever, cough or difficulty breathing. COVID-19 has clearly demonstrated that it can cause severe, life-threatening respiratory disease. In more severe cases, infection can cause pneumonia, severe acute respiratory syndrome, kidney failure and death.

As of February 20, 2020, over 75 000 people worldwide had been affected by the virus, with more than 2 000 deaths reported. The majority of these cases are in China, but 8 confirmed cases had been reported in Canada.

In situations such as this, Canadians may need a variety of supports from government, including EI benefits. EI sickness benefits are available to all persons who are unable to work because of an illness, injury or quarantine if they have accumulated 600 hours of insured work in the year preceding their claim or since their last claim, whichever period is shorter.

Under subsection 40(6) of the Employment Insurance Regulations (the EI Regulations), claimants who are entitled to sickness benefits can have the normal one-week waiting period waived if they have received paid sick leave from their employer for that period. This means that they can begin to receive their EI sickness benefits immediately.

Some individuals who seek EI sickness benefits in regards to the COVID-19 situation will have received paid sick leave from their employers after they stopped working and will therefore have their waiting period waived. This is because the employer has assumed the risk for the first week of unemployment. This applies especially to individuals who work for government agencies, hospitals and municipalities.

Some claimants will not have received paid sick leave from their employer after they stopped working.

Normally, claimants who are claiming EI sickness benefits have been under treatment for a medical condition and are able to provide a medical certificate issued by a medical doctor or other medical professional as required by subsection 40(1) of the EI Regulations. However, many people claiming EI benefits due to COVID-19 may not have been undergoing medical treatment and, therefore, will not have a medical certificate, as they may have been sent home as a precautionary measure by their employer, or may have worked in an area such as a hospital where they have been exposed to COVID-19. This is especially true if they show no signs of the disease after the period of quarantine and then return to work. In the absence of a medical certificate, the current rules would prevent such claimants from receiving EI sickness benefits.

In response to the SARS-CoV outbreak in 2003, the waiting period (two weeks at that time) was waived for Canadians who claimed EI sickness benefits due to quarantines that were imposed on them or recommended by public health officials for the health and safety of the public at large or requested by their employer or doctor. This was meant to encourage people to remain in quarantine rather than return to work. These provisions included a six-month sunsetting clause.

Objective

The objective of the Regulations Amending the Employment Insurance Regulations (these Regulations) is to facilitate willing compliance, when a person is placed in quarantine by a public health official due to COVID-19 acute respiratory disease, to remain in quarantine and remove the risk of persons attempting to return to work.

Description

These Regulations will fulfill the same purpose as the provisions introduced in 2003 to waive the waiting period during the SARS-CoV outbreak. They will allow the waiting period to be waived and remove the normal requirement for a medical certificate where a period of quarantine was either (1) imposed on the claimant by a public health official; or (2) recommended by a public health official and the claimant was asked by their employer, a medical doctor, a nurse or another person in authority to quarantine themselves. Claimants will have to provide a declaration that they have been ordered or asked to go into quarantine.

For a longer period, such as when the claimant develops COVID-19, the claimant would continue to be required to obtain a medical certificate.

These Regulations will remain in force for a period of six months.

Regulatory development

Consultation

These measures are being put in place following consultations with the Public Health Agency of Canada and Health Canada. The current regulatory amendments are being put in place as part of the Government of Canada’s overall response to the outbreak of COVID-19.

The situation related to COVID-19 is uncertain, and it is important that the Government of Canada take all the steps necessary to protect Canadians and respond to the public health issue.

As these Regulations are a direct response to the immediate public health situation posed by the outbreak of COVID-19, measures need to be put in place expeditiously in order to be effective. Additionally, these measures are beneficial for EI claimants. Consequently, no prepublication was undertaken.

Modern treaty obligations and Indigenous engagement and consultation

There are no implications for modern treaty obligations or Indigenous engagement in these Regulations.

Instrument choice

There is no discretionary authority in the Employment Insurance Act that would permit waiving the waiting period. The only means to accomplish this is through regulatory amendment. This measure was chosen as an effective way to contribute to the protection of Canadians in the context of a comprehensive government-wide response.

Regulatory analysis

Benefits and costs

A firm estimate of the cost of the proposed measure is not available. Assuming that claimants are getting the maximum weekly benefit rate of $573, and that there were 1 000 claims, the cost could be up to $573,000. By comparison, in 2003, in the context of the SARS outbreak, there were approximately 770 claims for which the waiting period was waived with an estimated cost of approximately $400,000. Program costs would be charged to the EI Operating Account, and would be factored into the calculation of the EI premium rate in future years.

In addition to the direct benefit to EI claimants, there is a benefit to public health. Reducing the incentive for people to return to work when placed in quarantine will reduce the risk of the disease spreading. This benefit has not been quantified or monetized.

Small business lens

No small business impacts are expected to result from these Regulations.

One-for-one rule

These Regulations have no impact on administrative burden or costs to business or employers.

Regulatory cooperation and alignment

These Regulations are not related to any commitments stemming from other regulatory jurisdictions.

Strategic environmental assessment

A preliminary environmental scan revealed no environmental impacts associated with these Regulations.

Gender-based analysis plus

These Regulations will have no gender-based analysis plus (GBA+) impact, as they do not target persons of any gender or identified group. The changes will benefit EI-eligible workers who are placed in quarantine, regardless of other characteristics. Persons who are not eligible for EI will not directly benefit from the Regulations. Indirectly, these Regulations will benefit those with pre-existing medical conditions as well as older individuals who are more vulnerable to becoming ill. Encouraging individuals in the labour force to remain in quarantine will help protect these groups from infection.

Rationale

These Regulations will allow the EI Program to assist the Government in its efforts to support individuals and families touched by COVID-19. They do so through enhancing a rapid access to temporary income support for EI claimants, and reducing the paperwork required, at a time of emotional and possible financial crisis for such persons. These measures will also help ensure that persons placed in quarantine are encouraged to remain in quarantine, thus helping to contain the spread of the virus.

Quarantine, while restrictive, has the potential to be the most effective measure for limiting the spread of disease. Its effectiveness depends on public cooperation and compliance for those asked or ordered to enter quarantine. Income loss for those unable to work due to being in quarantine may serve as an impediment to compliance for those required to remain in quarantine. A study that examined the SARS outbreak Ontario in 2003 found that fear of loss of income topped the list of concerns for people who were unconvinced that their quarantine was necessary.

As compliance with quarantine is vital to halting the spread of COVID-19, ensuring that income replacement is expediently provided by waiving the EI waiting period, is intended to complement other Government measures to contain the spread of COVID-19 and support quarantine measures.

Implementation, compliance and enforcement, and service standards

Implementation

These Regulations will be implemented immediately upon coming into force. No additional measures or coordination is required, and implementation will be accommodated within normal EI program operations.

Performance measurement and effectiveness of these Regulations will be undertaken as part of the ongoing monitoring and assessment of the EI program.

Compliance and enforcement

These Regulations do not change existing service standards and will seek to ensure these standards are met to the greatest extent possible for EI claims submitted by persons affected by COVID-19.

Standard investigation and control measures will continue to apply to ensure program integrity and enforcement.

Contact

Jean-François Girard Senior Director
Employment Insurance Policy
Skills and Employment Branch
Employment and Social Development Canada
140 Promenade du Portage, 7th Floor
Gatineau, Quebec
K1A 0J9
Telephone: 873‑396‑0518