Vol. 147, No. 12 — June 5, 2013

Registration

SOR/2013-102 May 24, 2013

EMPLOYMENT INSURANCE ACT

Regulations Amending the Employment Insurance Regulations

P.C. 2013-569 May 23, 2013

RESOLUTION

The Canada Employment Insurance Commission, pursuant to sections 54 (see footnote a), 69 (see footnote b), 152.33 (see footnote c), 153.1 (see footnote d) and 153.2 (see footnote e) of the Employment Insurance Act (see footnote f), makes the annexed Regulations Amending the Employment Insurance Regulations.

April 29, 2013

IAN SHUGART
Chairperson
Canada Employment Insurance Commission
MARY-LOU DONNELLY
Commissioner (Workers)
Canada Employment Insurance Commission

April 30, 2013

JUDITH ANDREW
Commissioner (Employers)
Canada Employment Insurance Commission

His Excellency the Governor General in Council, on the recommendation of the Minister of Human Resources and Skills Development, pursuant to sections 54 (see footnote g), 69 (see footnote h), 152.33 (see footnote i), 153.1 (see footnote j) and 153.2 (see footnote k) of the Employment Insurance Act (see footnote l), approves the annexed Regulations Amending the Employment Insurance Regulations, made by the Canada Employment Insurance Commission.

REGULATIONS AMENDING THE EMPLOYMENT INSURANCE REGULATIONS

AMENDMENTS

1. Section 1 of the Employment Insurance Regulations (see footnote 1) is amended by adding the following after subsection (2):

(3) For the purposes of these Regulations and subsections 23.2(1) and 152.061(1) of the Act, “critically ill child” has the meaning assigned by section 41.4.

(4) For the purposes of these Regulations and paragraphs 23.2(1)(a) and 152.061(1)(a) of the Act, “care” and “support”, in relation to a critically ill child, have the meanings assigned by section 41.5.

2. The portion of section 9.002 of the Regulations before paragraph (a) is amended by replacing “18(a)” with “18(1)(a)”.

3. Subparagraph 12(1)(a)(ii) of the Regulations is replaced by the following:

• (ii) under a wage-loss indemnity plan, any earnings by reason of illness, injury or quarantine, pregnancy, the care of a child or children referred to in subsection 23(1) of the Act or the care or support of a family member referred to in subsection 23.1(2) of the Act or of a critically ill child,
  

4. Subsection 14(2) of the Regulations is replaced by the following:

(2) An interruption of earnings from an employment occurs in respect of an insured person at the beginning of a week in which a reduction in earnings that is more than 40% of the insured person’s normal weekly earnings occurs because the insured person ceases to work in that employment by reason of illness, injury or quarantine, pregnancy, the need to care for a child or children referred to in subsection 23(1) of the Act or the need to provide care or support to a family member referred to in subsection 23.1(2) of the Act or to a critically ill child.

5. Section 14.01 of the Regulations is replaced by the following:

14.01 An interruption of earnings of a self-employed person referred to in paragraph 152.07(1)(c) of the Act occurs at the beginning of the week in which the person declares having reduced the time devoted to their business activities by more than 40% of the normal level because the person ceases to work by reason of illness, injury or quarantine, pregnancy, the need to care for a child or children referred to in subsection 152.05(1) of the Act or the need to provide care or support to a family member referred to in subsection 152.06(1) of the Act or to a critically ill child.

6. (1) Paragraph (a) of the definition “period of eligibility” in subsection 26.1(1) of the Regulations is replaced by the following:

• (a) in respect of the benefits referred to in subparagraph (2)(c)(i), one of the following periods, to which is added the waiting period referred to in section 13 of the Act if that period has not already been served:
  • (i) the period referred to in subsection 22(2) of the Act and any extension of that period,
  • (ii) the period referred to in subsection 23(2) of the Act,
  • (iii) the period referred to in subsection 23.1(4) of the Act,
  • (iv) the period referred to in subsection 23.2(3) or (4) of the Act;

(2) Subparagraph 26.1(2)(c)(i) of the Regulations is replaced by the following:

• (i) for a reason set out in paragraph 12(3)(a), (b), (d) or (e) of the Act,

(3) Subparagraph 26.1(2)(d)(i) of the Regulations is replaced by the following:

• (i) to the best of the claimant’s knowledge at the time of completing the form, there are no conditions of entitlement to benefits that will not be met for each week in the period of eligibility, except in respect of earnings that may be deducted under section 19, 22, 23, 23.1 or 23.2 of the Act during that period,

(4) Subparagraph 26.1(2)(d)(iii) of the Regulations is replaced by the following:

• (iii) the claimant will notify the Commission at the end of the period of eligibility whether or not they have met the conditions of entitlement to benefits for each week in the period of eligibility and whether or not they have declared all earnings that could be deducted under section 19, 22, 23, 23.1 or 23.2 of the Act during that period.

7. The portion of subsection 33(2) of the Regulations before paragraph (a) is replaced by the following:

(2) A claimant who was employed in teaching for any part of the claimant’s qualifying period is not entitled to receive benefits, other than those payable under section 22, 23, 23.1 or 23.2 of the Act, for any week of unemployment that falls in any non-teaching period of the claimant unless

8. Paragraph 35(2)(c) of the Regulations is amended by striking out “or” at the end of subparagraph (iii), by adding “or” at the end of subparagraph (iv) and by adding the following after subparagraph (iv):

• (v) a leave plan providing payment in respect of the care or support of a critically ill child;

9. Subsection 36(12) of the Regulations is amended by striking out “and” at the end of paragraph (d), by adding “and” at the end of paragraph (e) and by adding the following after paragraph (e):

• (f) payments in respect of the care or support of a critically ill child.

10. The portion of subsection 38(1) of the Regulations before paragraph (a) is replaced by the following:

38. (1) The following portion of any payments that are paid to a claimant as an insured person because of pregnancy, for the care of a child or children referred to in subsection 23(1) or 152.05(1) of the Act or for the care or support of a family member referred to in subsection 23.1(2) or 152.06(1) of the Act or of a critically ill child, or because of any combination of those reasons, is excluded as earnings for the purposes of section 35, namely, the portion that

11. (1) Paragraph 39(3)(a) of the Regulations is replaced by the following:

• (a) under a wage-loss indemnity plan by reason of illness, injury or quarantine, pregnancy, the care of a child or children referred to in subsection 23(1) or 152.05(1) of the Act or the care or support of a family member referred to in subsection 23.1(2) or 152.06(1) of the Act or of a critically ill child, or under a workers’ compensation plan; or
  

(2) Paragraph 39(3)(b) of the Regulations is replaced by the following:

• (b) by an employer in respect of sick leave, maternity leave or adoption leave, leave for the care of a child or children referred to in subsection 23(1) or 152.05(1) of the Act or leave for the care or support of a family member referred to in subsection 23.1(2) or 152.06(1) of the Act or of a critically ill child.
  

12. The Regulations are amended by adding the following after section 41.3:

BENEFITS — CRITICALLY ILL CHILD

41.4 (1) A critically ill child is a person who is under 18 years of age on the day on which the period referred to in subsection 23.2(3) or (4) or 152.061(3) or (4) of the Act begins, whose baseline state of health has significantly changed and whose life is at risk as a result of an illness or injury.

(2) For the purposes of subsections 23.2(1) and 152.061(1) of the Act,

• (a) a parent is a person who, in law, is a parent (including an adoptive parent) of a critically ill child, has the custody of or, in Quebec, parental authority over the child, or is the guardian of the child or, in Quebec, the tutor to the person of the child, or a person with whom the child is placed for the purposes of adoption under the laws governing adoption in the province in which the person resides; and
• (b) a specialist medical doctor is a medical doctor who is licensed to practise medicine in Canada as a specialist.

41.5 (1) Care is all care that is required because of a critically ill child’s state of health, other than the care provided by a health care professional.

(2) Support is all psychological or emotional support that is required because of a critically ill child’s state of health.

41.6 For the purposes of subsections 23.2(8) and 152.061(8) of the Act, the remaining weeks of unpaid benefits shall be divided as follows:

• (a) if the number of weeks of unpaid benefits equals the number of claimants, each claimant will be paid a week of benefits;
• (b) if the number of weeks of unpaid benefits is more than the number of claimants, a week of benefits will be paid to claimants in turn starting with the first claimant to make a claim until all the weeks have been exhausted; or
• (c) if the number of weeks of unpaid benefits is less than the number of claimants, a week of benefits will be paid to claimants in turn starting with the first claimant to make a claim until all the weeks have been exhausted.
  

13. (1) Subsection 55(4) of the Regulations is replaced by the following:

(4) A claimant who is not a self-employed person is not disentitled from receiving benefits in respect of pregnancy, the care of a child or children referred to in subsection 23(1) of the Act, the care or support of a family member referred to in subsection 23.1(2) of the Act or of a critically ill child or while attending a course or program of instruction or training referred to in paragraph 25(1)(a) of the Act for the sole reason that the claimant is outside Canada, unless their Social Insurance Number Card or the period of validity of their Social Insurance Number has expired.

(2) Paragraph 55(5)(a) of the Regulations is replaced by the following:

• (a) the benefits are in respect of pregnancy, the care of a child or children referred to in subsection 23(1) of the Act or the care or support of a family member referred to in subsection 23.1(2) of the Act or of a critically ill child;
  

(3) Subsection 55(10) of the Regulations is replaced by the following:

(10) In a claimant’s benefit period, a claimant who is not in Canada or a claimant referred to in subsection (8) may, subject to the applicable maximums set out in paragraphs (7)(a) and (b), combine weeks of benefits to which they are entitled, but the maximum number of combined weeks is 50. If the benefit period is extended under subsection 10(13) of the Act, the maximum number of combined weeks equals the maximum number of weeks calculated under subsection 10(15) of the Act less two weeks.

14. Subsection 55.01(3) of the Regulations is replaced by the following:

(3) A self-employed person is not disentitled from receiving benefits in respect of pregnancy, the care of a child or children referred to in subsection 152.05(1) of the Act or the care or support of a family member referred to in subsection 152.06(1) of the Act or of a critically ill child for the sole reason that the self-employed person is outside Canada, unless their Social Insurance Number Card or the period of validity of their Social Insurance Number has expired.

15. Subparagraph 63(g)(vii) of the Regulations is replaced by the following:

• (vii) who is in receipt of benefits under section 22, 23, 23.1 or 23.2 of the Act,

16. (1) Paragraph 65(b) of the Regulations is replaced by the following:

• (b) the plan must credit an insured person covered by the plan, after the completion of the period referred to in subparagraph 63(a)(i) or after the accumulation of the number of hours referred to in subparagraph 63(a)(ii), with one or more days of paid sick leave for each subsequent full month of active employment, of which at least one day per month is available only for the insured person’s illness or injury, while the insured person remains at home because of pregnancy or to care for a child or children referred to in subsection 23(1) of the Act or while the insured person is providing care or support to a family member referred to in subsection 23.1(2) of the Act or to a critically ill child;

(2) Subparagraph 65(c)(iii) of the Regulations is replaced by the following:

• (iii) allow the insured person to use paid sick leave while remaining at home because of pregnancy or to care for a child or children referred to in subsection 23(1) of the Act or while providing care or support to a family member referred to in subsection 23.1(2) of the Act or to a critically ill child;
  

(3) Paragraph 65(e) of the Regulations is replaced by the following:

• (e) the days of paid sick leave available only in respect of the insured person’s illness or injury, or while the insured person remains at home because of pregnancy or to care for a child or children referred to in subsection 23(1) of the Act or while the insured person is providing care or support to a family member referred to in subsection 23.1(2) of the Act or to a critically ill child, that are not used for those purposes must be accumulated at the rate prescribed in paragraphs (b) and (c), and the maximum number of days of paid sick leave that may be so accumulated is not less than 75 working days; and
  

17. (1) Paragraph 66(b) of the Regulations is replaced by the following:

• (b) the plan must credit an insured person covered by the plan, after the completion of the period referred to in subparagraph 63(a)(i) or after the accumulation of the number of hours referred to in subparagraph 63(a)(ii), with one and two thirds or more days of paid sick leave for each subsequent full month of active employment, of which at least one and two thirds days per month are available only for the insured person’s illness or injury, while the insured person remains at home because of pregnancy or to care for a child or children referred to in subsection 23(1) of the Act or while the insured person is providing care or support to a family member referred to in subsection 23.1(2) of the Act or to a critically ill child;

(2) Paragraph 66(d) of the Regulations is replaced by the following:

• (d) the days of paid sick leave available only in respect of the insured person’s illness or injury, while the insured person remains at home because of pregnancy or to care for a child or children referred to in subsection 23(1) of the Act, or while the insured person is providing care or support to a family member referred to in subsection 23.1(2) of the Act or to a critically ill child, that are not used for those purposes, must be accumulated at the rate prescribed in paragraphs (b) and (c), and the maximum number of days of paid sick leave that may be so accumulated is not less than 125 working days; and
  

18. Section 76.14 of the Regulations is replaced by the following:

76.14 For the purpose of extending a claimant’s benefit period under subsection 10(13) of the Act,

• (a) a reference in that subsection to benefits paid for one of the reasons mentioned in paragraphs 12(3)(a) and (b) of the Act is considered to include a reference to provincial benefits paid for the same reasons; and
• (b) the reference in that subsection to “the benefit period is extended so that those benefits may be paid up to that maximum total number of weeks” shall be read as a reference to “the benefit period is extended so that those benefits paid for one of the reasons mentioned in paragraphs 12(3)(c) to (e) may be paid up to the applicable maximum number of weeks established for those reasons”.
  

19. (1) Subsection 93(3) of the Regulations is replaced by the following:

(3) Subject to subsection (4), sections 22 to 23.2 of the Act apply to the payment of special benefits under this section.

(2) Paragraph 93(4)(b) of the Regulations is replaced by the following:

• (b) entitled to benefits under section 22, 23, 23.1 or 23.2 of the Act.

20. The Regulations are amended by replacing “18(b)” with “18(1)(b)” in the following provisions:

• (a)subsections 40(1), (4) and (5); and
• (b)paragraphs 62(3)(a) and (4)(a).

COMING INTO FORCE

21. These Regulations come into force on the day on which sections 13, 14, 17 to 20 and 22 to 25 of the Helping Families in Need Act, chapter 27 of the Statutes of Canada, 2012, come into force, but if they are registered after that day, they come into force on the Sunday after the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issue

The Helping Families in Need Act received Royal Assent on December 14, 2012. It amends the Employment Insurance Act (EI Act) to, among other things, create a new Employment Insurance (EI) benefit for parents of critically ill children (PCIC). The PCIC benefit provides up to 35 weeks of temporary income support to eligible claimants (insured persons, self-employed persons who have opted into the EI program and fishers) who take time away from work to provide care or support to one or more critically ill children under the age of 18.

Access to the new PCIC benefit is based on existing eligibility requirements for other EI special benefits (sickness, maternity, parental and compassionate care). Thus, insured persons require 600 hours of insurable employment within their qualifying period to be eligible. Self-employed persons need to have paid EI premiums for at least one year and earned a minimum amount in self-employment earnings during the calendar year preceding the year they submit their claim.

In addition, in order for a claimant to qualify for the PCIC benefit, a medical certificate is required attesting that the child is critically ill or injured. The certificate must be completed and signed by a medical doctor who is licensed to practice medicine in Canada as a specialist.

Flexibility is a key feature of the new benefit. Eligible claimants can decide to have one individual claim the benefit or decide to share it. When sharing, weeks of PCIC benefits can be claimed concurrently or consecutively by eligible parents.

The Helping Families in Need Act directed that some key concepts/definitions (e.g. who is a “parent” or “critically ill child”) be established in the Employment Insurance Regulations (EI Regulations) to enable implementation of the PCIC benefit. The Helping Families in Need Act amended the EI Act to give authority to the Canada Employment Insurance Commission to make regulations to address these matters. Coordinating amendments to the Employment Insurance (Fishing) Regulations are addressed separately.

Objectives

• Enable implementation of the PCIC benefit by
  • providing precision to amendments to the EI Act concerning eligibility for the new EI benefit for parents of critically ill children; and
  • maintaining consistency with existing provisions in the EI Act and the EI Regulations related to similar EI special benefits.

Description

The EI Regulations are amended to

• (1) Define
  • a “parent” as a person who, in law, is a parent (including an adoptive parent) of a critically ill child, has the custody of or, in Quebec, parental authority over the child or is the guardian of the child or, in Quebec, the tutor to the person of the child, or is a person with whom the child is placed for the purposes of adoption under the laws governing adoption in the province in which the person resides;
  • a “critically ill child” as a person who is under the age of 18 years on the day that benefits become payable and whose baseline state of health has significantly changed and whose life is at risk as a result of an illness or injury;
  • a “specialist medical doctor” as a medical doctor who is licensed to practise medicine in Canada as a specialist;
  • “care” as all care that is required given the critically ill child’s state of health, other than the care provided by a health care professional; and
  • “support” as all psychological or emotional support that is required given the critically ill child’s state of health.
• (2) Add a reference to the PCIC benefit whenever other special benefits (maternity, parental, sickness and compassionate care) are mentioned, as well as add reference to the compassionate care benefit in one instance where it was inadvertently overlooked when that benefit was introduced in 2003.
• (3) Specify that when claimants who are sharing weeks of benefits cannot agree on how benefits are to be divided, the benefits are to be divided as follows: Unpaid weeks of benefits will be paid to eligible claimants one week at a time starting with the first parent to make a claim, followed by the next parent to make a claim, and so on, until all the weeks have been exhausted.

Consultation

Broad and extensive consultations were conducted with the medical community and key stakeholders in May 2012. Consultations were focused primarily on soliciting input on (1) the definition of “critically ill”; (2) the medical eligibility criteria that would need to be met in order for a claimant to qualify to receive the PCIC benefit; and (3) the category (or categories) of medical doctors that should be authorized to attest on a medical certificate.

Six roundtable sessions were held at major centres across the country (Halifax, Montréal, Ottawa-Gatineau, Toronto, Winnipeg and Edmonton) involving 57 participants, the vast majority of whom were paediatric specialists. Consultations also included national stakeholder groups such as the Canadian Medical Association, Canadian Paediatric Society and Canadian Cancer Society.

There is widespread support for the amendments to the EI Regulations with respect to the definition of a critically ill child and related medical criteria, a specialist medical doctor, and care or support.

“One-for-One” Rule

The “One-for-One” Rule does not apply, as there is no change in administrative costs to business.

Small business lens

The small business lens does not apply, as there are no costs on small business.

Rationale

Overall, amendments to the EI Regulations are required to support the full implementation of the amendments to the EI Act to create the new EI benefit for parents of critically ill or injured children.

The first set of amendments is definitional in nature. These amendments provide additional details regarding the parameters for claimant eligibility referenced in the legislation. This provides greater precision with respect to who may claim the benefit for parents of critically ill children and under what circumstances. The definitions were developed taking into consideration consultations with the medical community and key stakeholders. These amendments to the EI Regulations are modelled on existing legislation and regulations for the EI compassionate care benefit.

The second set of amendments is consequential to the EI Act and adds reference to the new PCIC benefit wherever reference to other special benefits (maternity, parental, sickness and compassionate care) is made. From a policy perspective, the benefit for parents of critically ill children aligns with the existing group of special benefits and it is treated the same way as other special benefits in the amended EI legislation. Thus, it also needs to be treated in the same manner in the EI Regulations.

The third above-mentioned amendment regarding the division of benefits ensures that a rule is in place for circumstances in which two or more claimants are sharing the PCIC benefit and they cannot agree on how weeks of benefits are to be divided. This rule mirrors the one already in place for the compassionate care benefit.

Implementation, enforcement and service standards

Existing implementation and enforcement mechanisms contained in Human Resources and Skills Development Canada’s adjudication and control procedures will ensure that these regulatory amendments are implemented effectively and efficiently.

Contact

Jean-François Roussy
Director
Self-Employed, Special Benefits and Horizontal Policy
Employment Insurance Policy
Skills and Employment Branch
Human Resources and Skills Development Canada
140 Promenade du Portage
Gatineau, Quebec
K1A 0J9
Telephone: 819-956-3717
Fax: 819-934-6631
Email: jeanfrancois.roussy@hrsdc-rhdcc.gc.ca

• Footnote a
  S.C. 2012, c. 27, s. 19
• Footnote b
  S.C. 2012, c. 27, s. 20
• Footnote c
  S.C. 2009, c. 33, s. 16
• Footnote d
  S.C. 2000, c. 14, s. 6
• Footnote e
  S.C. 2010, c. 12, s. 2189
• Footnote f
  S.C. 1996, c. 23
• Footnote g
  S.C. 2012, c. 27, s. 19
• Footnote h
  S.C. 2012, c. 27, s. 20
• Footnote i
  S.C. 2009, c. 33, s. 16
• Footnote j
  S.C. 2000, c. 14, s. 6
• Footnote k
  S.C. 2010, c. 12, s. 2189
• Footnote l
  S.C. 1996, c. 23
• Footnote 1
  SOR/96-332