Types of Employment Insurance Benefits (8:IV)

A. Regular Benefits

EI benefits are calculated using your highest weeks of earnings over the qualifying period (generally 52 weeks): http://www.servicecanada.gc.ca/eng/ei/vbw/index.shtml. (Applies to both Regular (A) and Special Benefits (B)).

Regular EI benefits are payable during the benefit period to a claimant who:

• has had the requisite number of hours of insurable earnings during the qualifying period;
• has had an interruption of earnings from employment;
• is capable of and available for work
• has made “reasonable and customary efforts” ; and
• is unable to find suitable employment.

The maximum number of weeks of regular benefits available to a claimant varies according to the claimant’s hours of insurable employment in the qualifying period, and the regional rate of unemployment. See Schedule I, s 12(2) of the EI Act.

B. Special Benefits

This category includes sickness, compassionate care, pregnancy, parental benefits, and benefits for parents caring for a critically ill child (s 12(3)). More than one type of special benefit can be claimed within one benefit period. Similarly, special and regular benefits claims can be combined. However, s 12(6) sets out the maximum for such a combination. If the combination of regular and special benefits adds up to 50 or more weeks of benefits, the total number of weeks that a claimant is entitled to shall not exceed 50 weeks. If the combination adds up to 50 or fewer weeks, the claimant may receive more than the number of weeks he or she is entitled to under special benefits, but not more than 50 weeks in total.

In some cases, a claimant can receive greater than 50 weeks of special benefits and extend the benefit period beyond the usual 52 weeks while these benefits are being received. Claimants must not have been paid regular benefits during the benefit period, have been paid some combination of special benefits, and not have reached the maximum allowed amount of at least one of the types of special benefits that they have been paid (s 10(13)). In these cases, claimants will be able to receive up to the maximum number of weeks of each type of special benefits that they claimed before the benefit period was extended.

C. Sickness Benefits

1. Entitlement

To qualify for sickness benefits, the claimant must be able to prove that he or she is unable to work due to illness, injury, or quarantine, which normally requires that the claimant obtain a medical certificate. The illness, injury, or quarantine must be that of the claimant personally, not a child or other family member.

a) Major Attachment Claimant

Up to 15 weeks of sickness benefits are payable to a claimant who is incapable of work due to a prescribed illness, injury, or quarantine (s 12(3)). Major attachment claimants can receive sickness benefits even if the illness is the reason for ceasing work.

b) Minor Attachment Claimant

A minor attachment claimant may qualify for up to 15 weeks of sickness benefits where the illness arose after the termination of employment. This is where the minor attachment claimant did not suffer an interruption of earnings due to illness, but whose illness arose after the interruption (s 21(1)). If, due to the illness, the claimant cannot accept work, the claimant may be entitled to receive sickness benefits.

If a minor attachment claimant loses his or her job because of the illness or injury, the claimant will be eligible for regular benefits once recovered and capable of accepting suitable employment, notwithstanding that he or she was ineligible for sickness benefits. In some cases, a claimant who loses previous employment – due to injury for example – may not immediately qualify for regular benefits if he or she is capable of performing other jobs and is actively seeking such employment.

2. Sickness Benefit Rate

The sickness benefit rate is the same as the regular benefit rate and is subject to reduction due to “earnings”, which are allocated to weeks of sickness. In contrast to regular claimants, all “earnings” are deducted (s 21(3)). See Section V.D: Effect of Earnings, above.

Since paid sick leave benefits are regarded as earnings, they are deducted from EI benefits payable. An employee who receives paid sick leave has not suffered an interruption of earnings and therefore is not eligible to establish a claim.

3. Prescribed Illness, Injury or Quarantine

Sickness benefits are only available for a “prescribed illness, injury or quarantine that renders a claimant incapable of performing the functions of his or her regular or usual employment or other suitable employment” (s 40(4)). The onus is on the claimant to prove entitlement. A medical certificate is usually required, and the Commission may also require a claimant to undergo a medical examination at their direction pursuant to s 40(2) of the EI Regulations. In those situations the Commission must pay travel and other expenses for the examination.

D. Compassionate Care Benefits

At the time of writing, Compassionate Care Benefits may be paid upto a maximum of six weeks to a major attachment claimant who has to be absent from work to provide care or support to a gravely ill family member or a person who considers the claimant to be like a family member and is at risk of dying within 26 weeks. As of January 3, 2016, the maximum weeks of benefits will be 26 weeks for anyone whose benefit period begins on or after that date, and the benefit period within which those benefits may be paid will be 52 weeks. Unemployed persons on EI can also apply for this type of benefit.

To be eligible for Compassionate Care Benefits a claimant must apply and show that:

• his or her regular weekly earnings from work have decreased by more than 40 percent; and
• he or she has accumulated 600 insured hours in the last 52 weeks or since the start of his or her last claim

The EI Act’s expanded definition of “family member” includes a claimant’s:

• own child or the child of the spouse or common-law partner;
• wife/husband or common-law partner;
• father/mother or father’s wife/mother’s husband, if parent is remarried;
• common-law partner of father/mother, if there has been no remarriage;
• other relatives; and
• anyone that the gravely ill person considers to be like a family member.

NOTE: Please refer to the HRSDC web site for a comprehensive list of persons included under the term “family member”: http://www.servicecanada.gc.ca/eng/ei/types/compassionate_care.shtml#Definition

To establish a claim for compassionate care benefits in order to care for a gravely ill person who considers you to be like a family member, a signed “Compassionate Care Benefits Attestation” form must be obtained from the gravely ill person or their representative. A claimant will need to provide a medical certificate that indicates that the family member or friend is gravely ill with a significant risk of death within 26 weeks. The benefits will be given regardless of where the family member lives but a claimant will need to meet the same conditions that would apply if that ill person was in Canada.

E. Benefits for Parents of Critically Ill Children

Eligible parents who take leave from work to provide care or support to a child with a life-threatening illness or injury can receive up to 35 weeks of benefits. The benefits must be collected in the 52-week window beginning on the day a medical certificate is issued showing that the child is critically ill or, if the claim is made before the certificate is issued, from the date a specialist medical doctor certifies that the child is critically ill or injured.

As with other special benefits, the claimant must have an interruption of earnings (for special benefits, a 40% reduction in earnings) and have 600 hours in their qualifying period.

These benefits are not available to parents of a child with a chronic illness or condition that is their normal state of health. There must be a significant change from the child’s normal or baseline state of health at the time they are assessed by a specialist medical doctor.

F. Pregnancy Benefits

Like sickness benefits, pregnancy and parental benefits can be distinguished from regular EI benefits, because they are paid even though the applicant is not available for work. Pregnancy benefits are paid to an expectant or newly delivered mother. A mother can be entitled to both pregnancy benefits and parental benefits.

1. Entitlement

A claimant for pregnancy benefits must:

• a) be a major attachment claimant;
• b) prove her pregnancy. This entails furnishing a certificate completed by a physician that sets out the expected date of birth, or providing such other evidence as the Commission may require (s 18(1));
• c) claim pregnancy benefits at any time during the 10 weeks before the expected delivery date, or at the latest, during the week the baby is born, if the claimant wants to qualify for the full 15 weeks of benefits.
• d) report the date of birth of the child on the report card for that week; and
• e) have an interruption of earnings.

NOTE: A pregnancy that is terminated within the first 19 weeks is an illness defined in s 40(5) of the EI Regulations, and not a confinement.

2. Benefit Period and Duration

Benefits can only be paid for a maximum of 15 consecutive weeks during the period that starts no more than eight weeks before the week when the claimant’s due date is expected or before the week when the birth actually occurs, whichever is earliest.

Benefits end 17 weeks after the week of the expected due date (or the week that the birth occurs, whichever is earlier). As with claims for regular benefits, there is a two-week waiting period after the claim is made before benefits become payable.

3. Pregnancy Benefit Rate

The pregnancy benefit rate is the same as the regular benefit rate. All earnings received from other sources reduce benefits. However, no proof of availability is necessary. Money received under an employer’s sickness or maternity plan, other than a SUB plan, is regarded as earnings, and will be deducted. For a comprehensive list of what is and is not, regarded as earnings, see s 35 of the EI Regulations. See also Section V.C: Effect of Earnings, above.

4. When to File a Claim for Pregnancy Benefits

Since pregnancy benefits are not payable earlier than eight weeks before the expected date of delivery, a woman who wishes to receive benefits from this early date should, due to the waiting period, go on leave, or terminate her employment (if that is her choice) and make her claim 10 weeks before the expected date of delivery. The two-week waiting period would then be served, and benefits would be payable for 15 consecutive weeks commencing on the eighth week before the expected week of delivery.

Alternatively, a woman may wish to work up until the week of birth, and then make her claim. The two-week waiting period would then be served and benefits would be payable for 15 consecutive weeks beginning with the third week after the date of birth. If a pregnant worker becomes too ill to work prior to the birth, she should make a “sickness” claim, until she becomes eligible for pregnancy benefits.

NOTE: Whenever a client wishes to make her claim, she should know that pregnancy benefits are payable for a maximum of 15 consecutive weeks, and the latest week during which pregnancy benefits are payable is the 17th week after the week in which her delivery occurs (s 22(2)(b)(ii)). Thus, if the claim is made later than the week in which delivery occurs, the claimant may not receive the full 15 weeks benefits to which she would otherwise be entitled.

5. Availability of Regular Benefits on Termination of Maternity Benefits

A maternity pregnancy claimant may be entitled to regular benefits when her maternity benefits terminate, but she must be “capable of and available for work and unable to find suitable employment” in the same way as any other regular claimant. For example, she must prove that she has set up childcare arrangements so that she will be able to work immediately if a job is offered to her.

The claimant would also need to show that she is unable to return to her previous job because of a lack of positions, or that her previous job was unsuitable for her in her current conditions (i.e. a nursing mother being exposed to toxic fumes or other similar health hazards).

G. Parental Benefits

Under s 23, a new adoptive or natural parent (male or female) can remain at home to care for a new child and receive parental benefits for a maximum of 35 weeks. This benefit can be received in addition to the pregnancy benefit. The parents can share the weeks they receive these benefits, as long as the total does not exceed the maximum of 35, and so long as they are both major attachment claimants (EI Act, s 12).

Each parent is entitled to 55 percent of his or her average insurable earnings based on the rate calculation period and the divisor. To qualify, an adoptive parent must be a major attachment claimant, have an interruption of earnings, and have custody of the adopted child.

Parental benefits must be claimed during the period between the week the child arrives home and the 52 weeks following this date. In contrast to pregnancy benefits, parental benefits do not need to be claimed for consecutive weeks. Indeed, a new parent may find it desirable to “save” some weeks of parental benefits for the later months of the claim, in case the baby (or the parent) develops health problems. Bill C-32 repealed s 23(3), and allows parents to claim an earnings exemption.

For a case dealing with the constitutional jurisdiction over parental benefits see Reference re Employment Insurance Act (Can.) ss 22 and 23, 2005 SCC 56. It considered whether the federal government has the authority to provide pregnancy and parental benefits as part of its jurisdiction over “unemployment insurance”. The SCC reversed the Quebec Court of Appeals’ ruling, holding that the federal government does have jurisdiction to create such benefits as they are tied to unemployment.

H. Provisions for Low Income Families

For claimants with children and low family incomes, there is a family supplement that could raise their benefit rate to a maximum of 80 percent. Low-income families are defined as those with a combined annual income of less than $25,921. Under s 16, if the claimants meet the criteria, one parent may be entitled to receive the family supplement. To determine eligibility, s 16(2) states that eligibility for the Child Tax Credit will be used. This links eligibility to fluctuations in the rate of inflation. Section 34 of the EI Regulations provides a more detailed breakdown of eligibility and benefits.

I. Training Benefits

The EI budget includes discretionary funding for retraining. A claimant can apply to the Commission for an extension of benefits to improve his or her employability. Eligibility for these benefits is determined by the criteria in s 58(1) of the EIA, and includes anyone whose benefit period ended within the last three years. The Commission has discretion to approve funding for benefits during training, and decisions on this matter cannot be appealed (EI Act, s 25(2)).