Did Ottawa mean to do this to EI? (Guest Commentary)

Federal government’s new definition of ‘suitable employment’ means parents of school-aged children can’t be denied benefits during summer
By Alan McEwen
|Canadian HR Reporter|Last Updated: 02/11/2013

In last spring’s federal budget, the government signalled its intention to tighten up the criteria around the job searches of employment insurance claimants.

Claimants have always been expected to be actively looking for work, in order to qualify for regular benefits, but these changes, made effective Jan. 6, 2013, now define specific criteria on how claimants are expected to prove their availability for work.

However, when researching these changes, I did not expect they would also have overturned long-standing principles around when a person would be considered available for work and, hence, eligible for regular benefits.

What’s surprising is this aspect of the Jan. 6 changes has received no coverage in the press. One reason might be that currently the only source to obtain the text of these changes is the Canada Gazette. As of press time, not even the online version of the EI regulations has been updated to reflect these changes.

The gist of these Jan. 6 regulations (sections 9.001 to 9.004 inclusive) is they create a new legislative definition of “suitable employment.” To qualify for regular benefits, claimants must demonstrate a willingness to seek out and accept suitable employment. Or rather, EI benefits can be denied to claimants who can’t prove they are seeking suitable employment.

Among other things, suitable employment now means a job the claimant is able to perform health-wise and physically. As well, the hours of work must be compatible with both the claimant’s family and religious obligations. Further, the nature of the work must not be contrary to the person’s moral convictions or religious beliefs.

The simplest way of illustrating these changes is with an example. Readers would be cautioned, however, that the EI legislation is quite complex and there are many grounds on which a person may be disqualified or disentitled from receiving benefits — the following example is only meant to illustrate the impact of the new suitable employment definition.

What often happens is both parents work and in the summer, when school is out, it can be difficult to find daycare for school-aged children. For example, one parent may have a 9 a.m. to 5 p.m. job, with no one else able to care for the family’s children.

If the other parent had to quit a job to stay at home to care for such children, the EI Commission would have held that this need was an unreasonable restriction on this parent’s availability for work. Prior to Jan. 6, this decision would have been based on how courts have interpreted the conditions that claimants may reasonably impose on job searches, and still be eligible for benefits.

The new Jan. 6 regulations replace all of these prior court-based principles. Now, the limitations that claimants can impose on their availability for work are defined by these new regulations.

In the example above, the parent who was required to stay at home during the summer months to care for school-aged children could no longer be denied regular benefits on the basis she was not “available” for work. This is because a job that conflicted with such family obligations is no longer considered suitable employment for this claimant.

To demonstrate availability, such a claimant would now only have to demonstrate a search for jobs that could accommodate this person’s need to be at home during the hours while the other parent was away at work.

While this is a sweeping change, there has been no mention of it in any of the government’s communications around these Jan. 6 changes.

As such, it’s hard to understand that the example above is what the government meant when these Jan. 6 regulations were drafted. However, that’s clearly what they mean, so time will tell what the government’s response will be.

Alan McEwen is a payroll consultant and freelance writer with more than 20 years’ experience in all aspects of the industry. Since 2004, he has sat as an employer-side member of the Board of Referees in the Niagara Region. The board hears claimant appeals from decisions made by Service Canada and the EI Commission. He can be reached at armcewen@cogeco.ca, (905) 401-4052 or visit www.alanrmcewen.com for more information.

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