Digest of Benefit Entitlement Principles - Chapter 10

10.10.0   INVOLUNTARY RESTRICTIONS

10.10.1   Incapacity
10.10.2   Limited Capability
10.10.3   Handicap
10.10.4   Pregnancy and Childbirth
10.10.5   Family Obligations
10.10.6   Religious Obligations
10.10.7   Union Rules
10.10.8   Expiry of Work Permit

10.10.0    INVOLUNTARY RESTRICTIONS

An involuntary restriction is any type of constraint over which claimants have little or no control and which hampers their ability to work. Obviously claimants cannot be considered available for work if they are totally prevented from so doing. Therefore, difficulties arise, not when the claimant's availability is totally restricted, but when it is reduced to some extent.

As a general rule, a reasonable period of time will be accorded claimants to seek working conditions that satisfy their requirements. The genuineness of the situation, the extent of the constraint, the possibility of making alternative arrangements, the scope of the claimant's availability, personal efforts to find work, the chances of obtaining any as well as the claimant's past experience within the limitation are factors to be taken into account when determining the length of a reasonable period of time.

Here are the various restrictions over which a claimant who wishes to work has little or no control:

1. physical incapacity,
2. limited capability,
3. a handicap,
4. pregnancy and childbirth,
5. family obligations,
6. religious convictions,
7. union rules,
8. expiry of a work permit.

10.10.1    Incapacity

Obviously claimants cannot be considered available if they say that they are physically unable to work¹ or if they are in fact unable to work². In this case, the question to decide is whether entitlement to sickness benefits has been proven. This subject will be covered in a separate chapter.

Persons are considered physically unable to work when their inability is such that it rules out almost any possibility of obtaining employment in their usual occupation, and in other occupations which would be appropriate to their constitution, training, abilities or past experience³ If there is any chance of employment, the section on limited capability will apply.

A worker who is obliged to miss work temporarily owing to illness or injury may still be capable of performing less strenuous tasks. The worker will nevertheless be considered physically unable to work if, for all intents and purposes, there is little or no chance of finding suitable work pending recovery and resumption of work.

Claimants who have received the maximum number of weeks that can be paid as sickness benefits cannot subsequently claim regular benefits by saying that they are now capable of and available for work unless their physical condition has clearly improved. It is inconceivable that one's physical condition can support a finding of incapability as well as a finding of capability. If such a contention were put forward, one would assume that the claimant was either unable to work and unable to receive more sickness benefits, or able to work on a very limited basis and had already been granted a reasonable period of time to explore the possibilities of obtaining suitable employment⁴.

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1. Jurisprudence Index/availability for work/incompatible situations/health reasons/;
2. Jurisprudence Index/availability for work/applicability/definition/incapacity/;
3. EIR 40(4);
4. see 10.10.2, "Limited Capability."

10.10.2    Limited Capability

Persons suffering from incapacities which prevent them from working at their usual occupation are expected to be prepared to accept immediately any other type of work which they might obtain and which their condition would permit. A reasonable period of time is not required to determine that work in another occupation would be suitable¹. To conclude that chances of obtaining employment in another occupation are virtually nonexistent would be tantamount to saying that the claimant is physically unable to work, as discussed under the previous heading.

The chances of obtaining work are reduced significantly if a worker is compelled to change occupations temporarily or permanently. Since this limitation is not one that existed at the time the worker was paying unemployment insurance premiums, the concept of a reasonable period of time would apply to restrict the payment of benefit to that period of time during which the worker explores the possibilities of obtaining suitable work². For a determination of the period, the guidelines already covered³ will apply with one exception: in assessing the extent to which the chances of obtaining employment are reduced, a distinction will be made between claimants who would not have been entitled to benefits if they were incapable of work and those who would have been entitled in any event.

For claimants who would have been entitled to benefits in any event, their partial incapacity should not work to their disadvantage during the period they would have otherwise proven entitlement to sickness benefits. Since their incapacity as well as their partial capability can make them eligible for benefits⁴, it is sufficient that they make themselves available inasmuch as their reduced ability allows.

For major attachment claimants, this means that no consideration will be given to their incapacity of work or its probable duration in assessing prospects of employment during the two-week waiting period and the 15 weeks that can be paid as sickness benefits⁵. Restrictions which do not arise out of the claimant's incapacity, for example those dealing with wages or hours of work, or the absence of reasonable efforts to find work may lead to disentitlement during this period. It may also be possible that a period in excess of 17 weeks be considered reasonable in a particular case.

As for claimants who would have had no entitlement to sickness benefits, that is minor attachment claimants whose interruption of earnings was caused by incapacity⁶, their reduced physical condition and the probable duration of their incapacity are factors to be taken into account in assessing prospects of employment and in determining the length of a reasonable period. No period at all will be granted if the chances of obtaining work are virtually non-existent⁷.

Once the reasonable period has elapsed, both major and minor attachment claimants will fail to prove that they are capable of and available for work; thus, a disentitlement will become appropriate. Needless to say, a claimant whose physical condition has improved to the point where prospects of employment are better than initially should not be disentitled at this point in time.

It is also possible for claimants to prove incapacity with respect to a limited number of days in a week, so that they are capable of and available for work on the other days. Since incapacity of work as well as availability for work must be given consideration on a day-to-day basis⁸, this situation is acceptable and the reasonable period will be determined in the light of the guidelines covered in the preceding paragraphs. Minor attachment claimants whose interruption of earnings was caused by incapacity will be subject to disentitlement for each day of incapacity⁹, even during the reasonable period granted to find suitable employment.

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1. see 10.6.4, "Exceptions";
2. Jurisprudence Index/availability for work/restrictions/reasonable period of time/; Jurisprudence Index/availability for work/restrictions/health reasons/;
3. see 10.4.0, "Practical Application";
4. EIA 18(a); EIA 18(b);
5. see 1.8.0, "Waiting Period"; EIA 12(3);
6. EIA 21(1);
7. Jurisprudence Index/availability for work/restrictions/health reasons/; Jurisprudence Index/availability for work/restrictions/reasonable period of time/;
8. EIA 18;
9. EIA 21(1).

10.10.3    Handicap

A distinction must be made between a handicapped worker and one who has had to leave work as a result of a recent disability. Where a person has paid unemployment insurance premiums while suffering from a permanent partial disability, the person would be insured against the risk of unemployment in that context¹.

At no point during the benefit period should such a disability or handicap be considered in assessing prospects of employment. Claimants in this situation are only required to be available within the full extent of their partial capability. Their reduced physical condition will also be considered in assessing what amounts to reasonable efforts on their part to find work. Restrictions imposed on their availability which do not arise out of their disability may lead to disentitlement.

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1. using the principle found in 10.9.3, "Isolated Areas."

10.10.4    Pregnancy and Childbirth

Pregnancy and childbirth do not in themselves disentitle a claimant to benefit. The following discussion does not apply where a claim is for maternity rather than regular benefits.

The situations which most often come into play can be divided into three groups: voluntary unemployment as a result of the pregnancy; pregnancies with complications; and pregnancies with no complications. Naturally, a claimant does not demonstrate that she is available if she states that she is unable to work or if she is actually unable to work because of the pregnancy.

Leaving employment voluntarily because of pregnancy strongly suggests that a claimant is unavailable, because her departure indicates that either her ability to work is reduced or else she simply prefers not to work. The same is true of a claimant who asks for a leave of absence rather than continuing to work or neglects to avail herself of an opportunity of suitable employment¹. The onus is on the claimant to disprove this presumption by showing that her decision to leave the job or to refuse work does not detract from her ability or willingness to work, and that she is still actively seeking work that she could reasonably hope to obtain.

As for pregnancies with complications, the first question to determine is whether the claimant is incapable of work within the meaning of that word as found in the legislation and whether she is entitled to sickness benefits. If not so entitled, an assessment must be made of the extent to which her condition reduces prospects of employment.

Unless there are reasonable employment opportunities and her willingness to work is evidenced by her actions, the claimant will fail to prove that she is capable of and available for work.

While there may be no complications, a claimant may suffer from nausea at the outset of a pregnancy which could, for short periods, prevent her from performing her usual duties. In such cases, the employee is expected to request leave until she is able to return to work. If she has done this, the claimant will be considered upon recovery to have a pregnancy without complications and will be treated accordingly. Otherwise, she will be considered as voluntarily unemployed as a result of the pregnancy.

Claimants who do not leave their jobs voluntarily and whose pregnancies are without complications will be considered available for work, provided that their actions demonstrate a willingness to work. Pregnancy will not be considered an obstacle to obtaining employment². The situation is different, however, if there are other restrictions which severely reduce the possibility of obtaining employment.

Failure to make the required effort to return to her usual job after having the baby³, or to make the necessary child care arrangements so that she can actively seek work, may suggest that the claimant does not wish to return to the labour market. Clearly, such behaviour is not evidence that the claimant is available for work. In situations where the claimant has attempted to make baby-sitting arrangements but has been unable to do so due to the unusual timetable in the employment offered, she may be considered available provided she has made adequate arrangements for normal working hours.

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1. Jurisprudence Index/availability for work/applicability/unable to obtain suitable employment/;
2. Jurisprudence Index/availability for work/restrictions/work at home/; Jurisprudence Index/refusal of work/personal constraints/after confinement/; Jurisprudence Index/refusal of work/family responsibilities/;
3. Jurisprudence Index/refusal of work/baby-sitting arrangements/.

10.10.5    Family Obligations

Claimants caring for a child or relative may have their availability limited to some extent in that they might be able to accept work only during certain hours of the day which do not conform to normal patterns of work. Persons in this situation should not automatically be assumed to be unavailable for work¹.

Clearly, claimants fail to prove that they are available for work if an adoption agency has placed a child in their care with the understanding that they will not work outside the home for a period of time or if they simply choose to stay at home following the birth of a child. The same is true of people whose family responsibilities leave them no free time or do not allow them to work outside the home.

Where claimants are still available to some degree in spite of heavy responsibilities at home, their availability for work will be considered as being involuntarily restricted. This means that an assessment will be made of the extent to which prospects of employment are thus reduced, but their desire to find suitable work as soon as possible will not be doubted. On the other hand, any obligation which the claimant could probably have removed if the necessary arrangements had been made would be considered a voluntary restriction and would cast doubt on the person's willingness to return immediately to the labour market.

The distinction between a voluntary and an involuntary restriction should become a factor in determining the length of the reasonable period of time that will be granted to the claimant to seek suitable work or else, availability for work being primarily a subjective matter, more convincing evidence of availability should be required if the person's willingness to work is in doubt. No period at all will be granted in any case if prospects of obtaining employment within the claimant's restricted availability are virtually non-existent.

Child care in the home generally gives rise to voluntary rather than involuntary restrictions, since a failure to make the necessary arrangements arises most of the time out of negligence or personal choice rather than out of a real constraint. Reasonable efforts to find a baby-sitter are not evidence that a claimant is available for work if they have proved unsuccessful².

Claimants are not required to have a regular baby-sitter while they are unemployed. What they are required to show is that they can depend on someone who most likely could step in if a job opportunity arose. Claimants may also rely on help from their spouse, relatives, friends and neighbours in the short term; in fact, they must be in a position to report for work within the next 24 hours or at the most, 48 hours³. However, the arrangements made must not only enable a person to accept work whenever an opportunity arises, but they must also allow that person to leave home in order to look for work.

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1. Jurisprudence Index/availability for work/incompatible situations/family obligations/;
2. B. Bertrand (A-613-81,CUB 6932);
3. see 10.4.2.1, "Immediate Availability."

10.10.6    Religious Obligations

A claimant may be precluded from working on certain days of the week because of religious obligations, particularly Friday night, Saturday or Sunday. It should be borne in mind that the legislation requires that availability be proven only for working days, that is from Monday to Friday¹. Nevertheless, depending on the claimant's usual occupation, a refusal to work on Friday nights or during weekends could considerably reduce chances of obtaining employment. That would certainly be the case for a sales clerk for example.

It is incumbent upon claimants in this situation to extend their availability to include other occupations for which there are good employment opportunities in spite of the restriction. If their convictions are strong enough to preclude them from meeting the normally accepted requirements of the labour market, and if their prospects of employment are significantly reduced as a result, a reasonable period of time might then be granted to allow them to explore the possibilities².

It is not appropriate, even after a reasonable time, to ask whether a claimant is willing or unwilling to disregard his or her religious obligations and to accept any conditions which could increase employment opportunities. Such a question would infringe the basic rights of conscience and religion protected by the Canadian Charter of Rights and Freedoms.

The issue to resolve here is not different than the question asked of all claimants whose employment opportunities remain limited after a reasonable time. As always, one is expected to be willing to extend availability to every suitable employment one has the skills and training to perform, or to accept other working conditions or terms of employment in one's usual occupation which could increase opportunities to obtain employment while respecting one's religious obligations.

A claimant who, in these circumstances, refuses any extension or adjustment of his or her availability which would increase opportunities for employment could be refused benefits. In this case disentitlement would be based on something quite separate from the claimant's religious obligations; it would be based on a refusal to extend availability or to accept different working conditions or terms of employment. The notice of disentitlement sent to the claimant in these circumstances should therefore refer only to the refusal to extend or adjust availability which resulted in unduly limited employment opportunities.

However, a refusal to extend availability or accept other working conditions or terms of employment should not result in disentitlement if there is no other suitable employment that the claimant could perform or if employment opportunities would remain limited even if the claimant had accepted different conditions or terms of employment³.

Religious holidays, celebrations or observances which fall on a weekday should not by themselves give rise to a disentitlement provided they occur in a period during which the claimant has otherwise been available for work. However, if such occurrence falls during a period when the claimant is considered not available, the disentitlement will not be lifted. If such a holiday, celebration or observance lasts more than two working days in a row, the case will be determined on the basis of criteria for immediate availability⁴, that is whether, given the situation, the claimant remains anxious to accept any opportunity for suitable employment as soon as possible.

It should not be automatically assumed that persons doing volunteer work are not available. An analysis should be made of their statements and actions to determine whether a real restriction is involved and whether the restriction can be said to be voluntary or not.

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1. EIA 18(a); EIR 32; Jurisprudence Index/availability for work/restrictions/religious objections/; Jurisprudence Index/refusal of work/personal convictions/;
2. see 10.4.0, "Practical Application";
3. Jurisprudence Index/availability for work/restrictions/religious objections/;
4. see 10.4.2.1, "Immediate Availability."

10.10.7    Union Rules

It often happens that union members must abide by certain standards regarding acceptable types of work and rates of pay, or risk being fined by or expelled from the union. Although these limitations are accepted voluntarily to some extent, in the sense that the decision to remain a member rests with the worker, this will be considered an involuntary restriction rather than just a demand arising out of one's own choice. Of course, the restriction would be considered voluntary for those claimants who take the initiative in limiting their availability to working conditions recommended by unions.

Once the situation has been clarified, the guidelines already covered will be used to determine the reasonable period of time that may be granted the claimant to seek employment at the desired working conditions¹. As in other cases, once the period has elapsed, union members are expected to expand the parameters of their job search to include the possibility of less attractive work in other occupations².

In the case of union members, it should be noted that whereas reduced availability based on wage and occupational restrictions is common, it is also common for these persons to make themselves available beyond the place of residence. Sometimes their willingness to work may embrace one or even several provinces. This factor should be taken into consideration when calculating the reasonable period of time to be granted.

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1. see 10.4.0, "Practical Application";
2. see 10.6.7, "Union Members."

10.10.8    Expiry of Work Permit

Foreign workers require a work permit issued by Citizenship and Immigration Canada before they begin working or continue working in Canada. This work permit is called an Employment Authorization.

Generally, foreign workers can only demonstrate availability to accept work if they possess an Employment Authorization that allows them to work in Canada. Persons without this authorization cannot legally accept work in Canada and, for the most part, these workers cannot demonstrate availability¹. This is true of a claimant whose work permit expires without a chance of renewal. A person who is only allowed to work for one employer, or who has a non-renewable work permit is not available to accept work, and is rightly disentitled from collecting benefits. It is of no benefit for a person in this situation to argue that they are willing to seek work anyway, and that they have no intention of refusing any employment opportunities that arise.

However, it is important to fact find before determining that a foreign worker is unavailable because he/she does not possess an Employment Authorization. Before making a determination, it is necessary to obtain a declaration from the claimant regarding their availability, as well as information from Citizenship and Immigration Canada relevant to the claimant obtaining an Employment Authorization. Relevant questions include: Is the individual permitted to seek work with other Canadian employers? Is their work permit renewable? Has the work permit expired permanently? This information should be recorded on the file to support any determination made regarding the foreign worker’s availability.

A claimant who does not currently possess an Employment Authorization is not necessarily unavailable for work. The claimant may be able to obtain an Employment Authorization as soon as employment is secured because of the type of work he/she performs, or because the individual’s skills and aptitudes are not readily transferable. Consequently, the lack of Employment Authorization is not always determinative of availability. One must take all of these factors into consideration before a disentitlement is imposed.

1. Jurisprudence Index/availability for work/restrictions/work permit limitations in Canada/.