Employment Insurance Regulations - Amendments

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Description

The Budget Implementation Act, 2003 (Bill C-28) introduces changes to the Employment Insurance (EI) Act that will come into force from January 4, 2004. These changes introduce a new type of special EI benefits, Compassionate Care Benefits.

Up to 6 weeks of Compassionate Care Benefits will be available to be shared among eligible family members to provide compassionate care for a gravely ill or dying child, parent, spouse or common-law partner. They will be available to EI claimants who are providing care or support to a family member due to the serious medical condition of the family member who has a significant risk of death within 26 weeks (6 months).

Access to this new EI special benefit will be based on the rules for existing EI special benefits (sickness, maternity, parental). A claimant will require 600 hours of insurable employment to qualify for up to 6 weeks of compassionate care benefits.

Claimants could be paid benefits in regards to one of the following gravely ill family members: a spouse or common-law partner; a parent; a spouse or common-law partner of a parent; a child; or, a child of the spouse or common-law partner.

Claimants must prove that they are providing care or support to the family member in order to receive compassionate care benefits. They would need to obtain a medical certificate from the family member’s doctor indicating that the family member has a serious medical condition with a significant risk of death within 26 weeks (6 months).

The 26 week window will start from the week in which the medical certificate, completed by the doctor, attests to the need for one or more family members to provide care or support to the gravely ill family member.

Flexibility is a key feature of the new benefits and claimants would have flexibility in how and when benefits may be claimed within the 26 week window. Eligible family members could decide to have one person claim all 6 weeks or decide to share the benefit. Weeks of compassionate benefits could be claimed concurrently or consecutively by eligible family members.

A waiting period applies for the new compassionate care benefit. However, when benefits are shared by eligible family members, the waiting period may be deferred for all but one family member.

To complement the amendments to the EI Act, there will be consequential amendments to the Employment Insurance (EI) Regulations. More specifically, amendments are required to EI Regulations 14, 26.1, 33, 35, 36, 38, 39, 55, 63, 65, 66 and 93. There are also new regulations consequential to the legislative changes (new sections 41.1 to 41.3). All these regulatory amendments are to become effective from January 4, 2004 (at the same time as the EI Act changes related to Compassionate Care Benefits).

During the pre-publication period, it was also proposed that an amendment be made to Regulation 37 (supplemental unemployment benefit plans for lay-offs, training and periods of illness). However, it has been determined that this amendment is not required. The amendment being made to Regulation 38 (supplemental unemployment benefit plans for maternity and parental leave) adds compassionate care benefits and this is all that is required.

Subsection 14 (2)

This Regulation sets out when an interruption of earnings occurs in order to establish a claim for EI benefits. Subsection 14 (2) deals more specifically with when such an interruption of earnings occurs for EI special benefits and states that, for special benefits, an interruption occurs when earnings in a week are reduced by more that 40% of an insured person’s normal weekly earnings. Since compassionate care benefits are a new type of special benefits, a reference to these new benefits has been added to this subsection.

Section 26.1

Claimants are generally required to make bi-weekly claims for EI benefits but section 26.1 sets out when making such bi-weekly claims is not required. More specifically, paragraph 26.1 (2) (a) exempts claimants from making bi-weekly claims when they are claiming maternity and parental benefits. The amendments to subsections 26.1 (1) and 26.1 (2) will also exempt those claiming compassionate care benefits from the requirement to make bi-weekly claims.

Subsection 33 (2)

Regulation 33 sets out special conditions for teachers to ensure that they are not doubly-compensated by a school board and EI benefits during non-teaching periods. Subsection 33 (2) permits the payment of EI maternity and parental benefits to teachers during non-teaching periods as this is consistent with the reasons that maternity and parental benefits are paid. This amendment adds compassionate care benefits to the type of special benefits payable during non-teaching periods. The reasons for the payment of compassionate care benefits are comparable to the reasons for paying maternity and parental benefits during non-teaching periods.

Paragraph 35 (2) (c)

Regulation 35 sets out the types of money that are considered earnings for EI benefits purposes. Paragraph 35 (2) (c) refers to payments from group sickness, maternity or parental leave plans through the employer. The amendment ensures that payments from an employer’s group compassionate care leave plan will be treated in the same way as payments from group sickness, maternity or parental leave plans.

Subsection 36 (12)

Regulation 36 sets out how money is to be allocated once it has been determined to be earnings for benefit purposes (Regulation 35). Subsection 36 (12) sets out the rules for allocating payments received by claimants from sickness, maternity or parental leave plans. This amendment ensures that payments received from a plan related to compassionate care leave are allocated in the same way as payments received from sickness, maternity and parental leave plans.

Section 38

This Regulation sets out the rules for the allocation of payments by an employer from maternity and parental plans that are not formal Supplemental Unemployment Benefit plans. Such payments are not earnings for EI benefit purposes. The amendment will allow employers to establish plans related to compassionate care leave in conjunction with such existing maternity and parental leave plans.

Subsection 39 (3)

This Regulation sets out the rules for allocating earnings during a claimant’s waiting period. Earnings from wage-loss indemnity plans related to sickness, maternity and parental leave are not considered as earnings when paid during the waiting period. The amendment ensures that payments under a wage-loss indemnity plan related to compassionate care leave are also not be considered as earnings during the waiting period.

Section 41.1

This new section of the regulations is consequential to the provisions in Bill C-28. The new paragraph 23.1 (2) (b) of the EI Act requires that a medical certificate include an attestation that “the family member requires the care or support of one or more other family members” (italics added for emphasis). This new regulation defines the meaning of care or support of a family member for purposes of the payment of compassionate care benefits.

Section 41.2

This section sets out the nature of the medical proof that a claimant must provide from a medical doctor or a medical practitioner to establish that a family member is seriously ill and has a significant risk of death in the next 26 weeks. It specifies when medical proof can be provided by a medical practitioner, other than a medical doctor, in Canada. It also specifies when a medical doctor or other medical practitioner outside Canada can provide medical proof concerning the seriously ill family member.

Section 41.3

This section sets out the rules for dividing weeks of benefits among family members when they cannot all agree on how such benefits should be shared. In such cases, the division will be made to provide each eligible family member with as near an equal share of benefits as is possible.

Section 55

This section sets out the rules for the payment of benefits to claimants who are outside Canada. The amendments ensure that claimants claiming compassionate care benefits out of Canada will be treated in the same way as those claiming maternity or parental benefits outside Canada. Also, the conditions under which a benefit period will be extended for a person outside Canada are being amended to match the reasons that apply to persons who may be paid compassionate care benefits in Canada.

Subparagraph 63 (g) (vii)

This section sets out the standards that apply to weekly indemnity plans. The amendment is to ensure that the exclusion under such plans that is permitted now for maternity and parental benefits will apply as well to compassionate care benefits.

Paragraph 65(b), subparagraph 65 (c) (iii) and paragraph 65 (e)

Section 65 sets out the requirements that must be met for a plan to be regarded as a cumulative paid sick leave plan for purposes of the EI Act and Regulations.

Paragraph 65 (b) requires that a plan must credit an insured person with leave credits. As compassionate care benefits are special benefits, they are being added to the other types of special benefits referred to in this paragraph.

Paragraph 65 (c) sets out the rules on how paid sick leave credits may be used under a plan. As compassionate care benefits are special benefits, they are being added to the other types of special benefits referred to in subparagraph (c) (iii).

Paragraph 65 (e) refers to the accumulation of sick leave credits when payments are made from a paid sick leave plan in relation to sickness, maternity or parental leave (special benefits). As compassionate care benefits are special benefits, they are being added to the other types of benefits referred to in this paragraph.

Section 66

This section sets out the requirement that must be met for a plan to be regarded as an enhanced cumulative paid sick leave plan for purposes of the EI Act and Regulations. Paragraphs (b) and (d) refer to the accumulation of sick leave credits when payments are made from a paid sick leave plan in relation to sickness, maternity or parental leave (special benefits). As compassionate care benefits are special benefits, they are being added to the other types of benefits referred to in this paragraph.

Section 93

This section sets out the entrance requirements for new entrants and re-entrants to the labour force when they are claiming special benefits. Subsections 93 (3) and paragraph 93 (4) (b) refer to sections 22 (maternity benefits) and 23 (parental benefits) of the EI Act. The amendment is to add a reference to the new section 23.1 (compassionate care benefits) of the EI Act so that these three types of special benefits are treated in the same way.

Alternatives

No other alternatives were considered as these changes are consequential to the introduction of compassionate care benefits to the existing types of benefits under the EI Act.

Benefits and Costs

The regulatory amendments will ensure that claimants claiming compassionate care benefits in Canada or outside Canada and those who are new entrants or re-entrants to the labour force will benefit from the changes to the EI Act. There are no costs arising from these regulatory amendments apart from the overall costs of the legislative changes.

Consultation

These Regulations were pre-published in the Canada Gazette, Part I for 30 days (Volume 137 No. 39, September 27, 2003). The only comments received were from an HIV and AIDS Legal Clinic.

The legal clinic did not submit any comments concerning the proposed regulatory wording but did make recommendations regarding key elements of the legislative amendments included in the Budget Bill 2003 (Bill C-28): that 26 weeks of benefits should be payable to a caregiver for a period of up to two years; that the definition of a family member should be expanded to include siblings, extended family and friends; that benefits should be paid beyond the 26-week period set out in Bill C-28 based on medical proof of need; that the new benefits should be widely promoted in various communities; and that support for palliative care services should be increased to cover services for 24 hours a day and 7 days a week.

The recommended changes would require significant modifications to the legislative provisions just approved by Parliament in Bill C-28 and the Government does not believe that such modifications should be made at this time. However, the recommendations from the legal clinic will be retained and will be taken into consideration when an evaluation of the compassionate care benefits is undertaken. The government will be widely promoting these new benefits as recommended by the legal clinic.

Compliance and Enforcement

There will be an analysis of the new compassionate care benefits as part of the yearly HRDC Monitoring and Assessment Report.

Contact

Jim Little
Senior Policy Advisor
Policy and Legislation Development, Insurance Branch
Human Resources Development Canada
140 Promenade du Portage, 9th floor
Gatineau, Quebec
K1A 0J9
Telephone: (819) 997-8628
Fax: (819) 953-9381