Not all provinces offering job protection to match new EI
New compassionate care benefits that provide up to six weeks of income support for people who need time off work to care for a dying loved one may be cutting edge, but have many employers scratching their heads.
Since Jan. 4, every employee in the country who has put in enough hours to qualify for Employment Insurance has the right to receive compassionate care benefits — but not every employee has the right to take the time off work.
While EI programs like compassionate care are the jurisdiction of Ottawa, the establishment of job protection regulations is a provincial responsibility.
Ontario, Alberta, British Columbia, Newfoundland and Labrador and the Northwest Territories have thus far refused to make changes to their labour codes to ensure job protection for those wishing to access compassionate care benefits.
Further complicating the matter, a Quebec Court of Appeal ruling late last month calls into question EI benefits programs like compassionate care. The court ruled parental leave benefits are unconstitutional because they overstep federal powers. Ottawa has until the end of March to appeal the decision but at press time there was no clear indication of how it will proceed. “All employment benefits and support measures currently in place will continue to be made available to Canadians,” said Joe Volpe, Minister of Human Resources and Skills Development.
Regarding compassionate care, Volpe said, “The Government of Canada believes that Canadians should not have to choose between their job and caring for their family during a serious medical crisis. The compassionate care benefit will allow eligible Canadians to deal with these serious family issues.”
Most provinces and the federal government, which dictates work regulations for the federal and federally regulated sectors under the Canada Labour Code, have mandated at least eight weeks of job protection since there is a two-week waiting period for any employee who registers for compassionate care EI benefits.
But the B.C. government feels it shouldn’t have to change the labour code to guarantee employees can access the benefits, said Gordon Williams, a communications manager for the Ministry of Skills Development and Labour. “It should be something that is worked out between the employer and employee,” he said.
Janice Schroeder, a spokesperson for Alberta’s ministry of Human Resources and Employment, said the Alberta government “has no plans at this point to change the provincial employment standards code. We would hope employers and employees would work together to find an arrangement that works for both parties so that people are able to take off the time they need.”
Given the employment rates in Alberta, and the difficulty employers have in holding onto talented people, most employers will give employees the time off, she said.
Although Alberta changed the labour code to extend job protection when parental leave benefits were increased by Ottawa in 2001, that was only after a committee examined the issue, she said. Right now the Alberta government isn’t even looking at striking such a committee.
Nora Spinks, a leading work-life balance expert who conducted background research on compassionate care needs for HRDC, said it is a “puzzlement” why some provinces are dragging their feet. The program is indeed unusual — only Denmark and Norway have something similar — but that doesn’t mean there isn’t a real need for a growing number of working Canadians, she said.
An October 2002 Ipsos Reid survey found 81 per cent of Canadians support the government providing income support to people caring for a dying family member, and 28 per cent expect to have to care for a gravely ill or dying family member within five years. Another survey of business leaders found that 60 per cent supported the idea.
It’s also a fairly low-risk proposition for the provincial governments to make the change, she said. It will only take one employee to lose his job while caring for a dying family member for those governments to wish they had made the changes, she predicted.
Some employer groups have voiced concerns about the new benefit.
The Canadian Council of Chief Executives maintains support for people caring for loved ones is good in principle, but should not be funded through the employment insurance system.
The federal government has been fundamentally misusing the EI system for years, said David Stewart-Patterson, executive vice-president. In an insurance system there should be some element of risk involved for users, such as experience rating. “Premiums are supposed to insure yourself against a risk, it is not supposed to be a tax,” he said.
Instead, EI premiums are being treated as a tax to fund general benefits.
The Canadian Federation of Independent Business, the umbrella lobbying and promotion group for 100,000 small- and mid-size employers, is concerned about what the new benefits program will mean for its members. “The goal is good. How it is being implemented may not be so good,” said Garth Whyte, executive vice-president of CFIB.
Because the new program is extremely complex, it will be very difficult for small- and medium-sized employers to manage.
The government assumes every employer in the country has an HR department to manage new programs like compassionate care, but that often isn’t the case, he said.
“A lot of (small employers) have had an informal system of compassionate leave forever,” he said. “Now the problem is in the implementation. They don’t know the rules, they don’t know what is required of them and it is not harmonized at the provincial level.”
It is even difficult finding information about the program on the HRSD Web site, he said. (Human Resources Development Canada originally managed the compassionate care program but HRDC was divided into two departments under Prime Minister Paul Martin, with Human Resources and Skills Development (HRSD) taking over the program.)
Ottawa announced in last year’s budget its intention to create the new benefit; but since then the government has done very little to educate employers or clear up any confusion, said Whyte.
There is a huge amount of confusion and not just among small employers, said Spinks. “The program is so complex and so unique that a lot of people are looking for help with how to manage.”
Besides uncertainty about which provinces guarantee job protection, the intent of the program makes it inherently difficult to manage, she said.
For example, unlike parental leave benefits, compassionate care is an indirect benefit, she said. “The beneficiary is the employee, but the need is someone else’s.” With maternity and parental leave it is either the mother or father so it was easy to make decisions about eligibility. “But in this case it is once removed so there is complexity around that.”
The six weeks of benefits can also be divided by more than one family member so that, for example, an employee can claim two weeks of benefits, with the employee’s sister taking two weeks, and another sister taking the last two weeks. Many people will also have questions about which loved ones they can use the benefits for and how doctors have to be involved.
“Death is one of those things that is pretty hard to predict and because of that the benefits have to be very flexible. And in order to be flexible it is hard to get your fingers wrapped around it and turn it into workplace policy,” said Spinks.
