Qualifying for Employment Insurance (8:III)

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on August 7, 2024.

A. Interruption of Earnings

An interruption of earnings happens when an employee does not work and earns no income for seven consecutive days after being laid off or separated from their employment.

The interruption of earnings must be complete. If an employee's hours are reduced, but they still work at least some hours over seven consecutive days, their earnings are not interrupted. A voluntary leave of absence (e.g., for sickness or vacation) also does not create an interruption of earnings.

Employees with irregular or rotational schedules do not have an interruption of earnings if going seven or more days without work is normal for their job. In D.B. v CEIC (2022) the General Division of the Social Security Tribunal (“SST”) held that a claimant with a schedule of fourteen days working followed by seven days off (common in fly-in-fly-out employment) did not experience an interruption of earnings, because they were not laid off or separated from their employment, and were instead just following their ordinary work schedule.

Money received upon the termination of employment (e.g., vacation and severance pay) does not delay the interruption of earnings, but it may delay the start of the EI benefits period. An employee receiving a severance package equal to 3 months of their regular salary will not receive EI payments until that severance period is over. However, they must apply for EI immediately after termination, or risk disentitlement. This is true regardless of whether the severance package is in the form of a single lump-sum payment, or the continuance of the employee’s salary for a limited time.

Note: In the case of special benefits, an interruption of earnings is deemed to have occurred when a worker experiences a reduction in earnings exceeding 40% of their normal weekly earnings. A worker may take a voluntary leave of absence to access special benefits

B. Insurable Employment

Unless otherwise stated in the EI Act or Regulations all employment in Canada is insurable. Non-insurable employment generally falls into three categories: work for an EI-exempt employer (i.e., a foreign or provincial government), self-employment, and work for an employer who is related or otherwise not at arm’s length to the claimant.

Generally, if an employee has EI premiums deducted from their paycheck their employment is insurable. However, it is nature of the employment, and not the premiums paid, that is determinative. An employee will not be ineligible for EI because their employer failed to pay EI premiums when they had a legal obligation to do so.

All disputes regarding whether an employment is insurable are determined by the Canada Revenue Agency (“CRA”). Appeals of decisions by the CRA are made first to the Minister of National Revenue (within 90 days of being informed of the decision), and then to the Tax Court of Canada. Tax Court decisions can be appealed to the Federal Court of Appeal.

1. EI Exempt Employers

Provincial governments and international organizations or governments are not required to insure their employees through EI, but they may opt into the program. Although not required by the EI Act, almost all employees of the province of British Columbia are insured under it. Typically, participation in EI is required by the terms of a province’s collective agreements with its public sector unions.

2. Self-Employment

Hours worked while self-employed are not insurable. A person is self-employed if they operate a business or work alone as an independent contractor. A person is not self-employed if their work is characterized by an employee/employer relationship, where someone else controls where, when and how their work is done. This remains so even if their employment contract states that they are an independent contractor. A self-employed person is not eligible for regular EI benefits, but may access special benefits by registering for the “EI benefits for self-employed people” program.

3. Employment not at arms's length

If someone’s employer is a romantic partner, close relative, or otherwise not at arm’s length from them, their employment is only insurable if it would be reasonable to conclude that their employer would have hired a non-related person under a similar contract of employment.

C. Qualifying Period

The qualifying period is the time frame during which a worker must have accumulated enough insurable hours to be eligible for EI benefits.

If a claimant applies for EI within 30 days of their interruption of earnings, their qualifying period will generally be the 52 weeks before their interruption of earnings. If they miss the deadline, it will be the 52 weeks before their application was sent. Once a claimant accesses EI, their qualifying period resets and the qualifying period for any EI claim made in the next year will begin with the start of their last benefit period.

If a claimant was unable to work during one or more weeks of their qualifying period for a reason identified in the EI Act, the Commission may extend it to a maximum of 104 weeks. These reasons are illness, injury, quarantine, pregnancy, or confinement in a jail for an offence that they were not found guilty of.

D. Minimum Hours of Employment Required

A claimant must work a certain number of insurable hours during their qualifying period to receive EI benefits. The number to qualify ranges from 420 to 700 hours and is determined by the unemployment rate in the region where the claimant lives.

Unemployment rates for EI Economic Regions can be found online at https://srv129.services.gc.ca/ei_regions/eng/rates_cur.aspx.

You can find the economic region by searching your postal code at the following link: https://srv129.services.gc.ca/ei_regions/eng/postalcode_search.aspx

If an insured person was found guilty of one or more EI violations during the 260-week period prior to their initial claim, their minimum hours to qualify for EI will be increased. For more information see Section VII: Penalties, Violations, and Offences.

E. Record of Employment

Employers must issue a record of employment (“ROE”) whenever an employee experiences an interruption of earnings. A ROE provides a record of the employee’s first and last day of employment, hours worked, earnings, and the reason for their separation from employment. A ROE is required to determine an insured person’s eligibility for EI and to calculate their benefits.

1.Deadline to issue

An ROE may be issued electronically or on paper. If the ROE is electronic, it must be provided within five calendar days of the end of the pay period in which an interruption of earnings occurred. If the employer pays their employees thirteen or fewer times a year, the electronic ROE must be submitted within fifteen days of the interruption of earnings. For a paper ROE, the employer must provide a physical copy to the employee within five calendar days of the interruption of earnings, or the day they became aware of the interruption of earnings.

An employer is not obligated to inform an employee after issuing an electronic ROE. An employer issued electronic ROE is linked to the employee’s My Services Canada Account (“MSCA”) through their SIN number. If the employee does not have a MSCA account, their ROE will be linked to it as soon as they register for one, although they may need to wait 5-10 business days for a Personal Access Code to be mailed to them before they can register.

2. Applying without a ROE

Even if an insured person does not have access to their ROE, they should still apply to EI as soon as possible. All documents required to process an EI claim may be uploaded to an application after it is submitted. If their employer is unwilling or unable to submit an accurate ROE, they should contact an EI representative immediately to explain the situation.

If the claimant disagrees with statements in the ROE, they should first ask the employer to correct them. The claimant should also bring the errors to the Commission’s attention when they apply.

Note: It is crucial for claimants who have held multiple jobs during the qualifying period to retain the ROEs from each employer.

E. Filing an Application

Applications should always be filed during the first full week of unemployment. Applications will be automatically “antedated” (see Section IV.B: Antedating) for up to four weeks following the week of the interruption of earnings. If the claimant delays longer than this, they may lose benefits unless they are able to show “good cause” for the delay.

Because documents may be added to an EI file at any time, an insured person should never delay their application. An incomplete application submitted on-time is always better than a complete one submitted after the deadline. If a claimant does not have access to all documents required for their application, they should first request them from their employer. If unsuccessful, they should contact an EI agent for assistance. If necessary, a claimant may prove their employment history and insurable earnings by filing an application supported by pay slips and cheque stubs, etc.

NOTE: Applications may be filed online through the ESDC website. Applicants filing online must still submit their ROE(s) by mail or in person, unless their ROE has a “W” or “S” serial number on it. A “W” or “S” means their employer has provided the ROE electronically to the local office and the claimant is not required to submit the paper copy. Claimants may review and edit their claim information online by using their My Service Canada Account (“MSCA”).