Vol. 151, No. 23 — November 15, 2017

Registration

SOR/2017-226 October 26, 2017

EMPLOYMENT INSURANCE ACT

Regulations Amending the Employment Insurance Regulations

P.C. 2017-1289 October 26, 2017

RESOLUTION

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

Ottawa, October 2, 2017

Louise Levonian
Chairperson
Canada Employment Insurance Commission

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

Regulations Amending the Employment Insurance Regulations

Amendments

1 Subsections 1(3) and (4) of the Employment Insurance Regulations (see footnote 1) are replaced by the following:

(3) The following definitions apply in these Regulations and in subsections 23.1(2), 23.2(1), 23.3(1), 152.06(1), 152.061(1) and 152.062(1) of the Act.

family member, in relation to an individual, means any one of the following:

nurse practitioner means a registered nurse who, under the laws of a province, is entitled to practise as a nurse practitioner — or under an equivalent designation — and to autonomously make diagnoses, order and interpret diagnostic tests, prescribe substances and treat patients. (infirmier praticien)

(4) For the purpose of the definition family member in subsection (3), guardian means a person who is legally authorized to act on behalf of a minor or incapable adult and includes a tutor, curator, mandatary acting under a protection mandate or any person who is appointed to act in a similar capacity and ward means a person for whom a guardian is appointed.

(5) The following definitions apply in these Regulations and in paragraphs 23.‍1(2)‍(b), 23.‍2(1)‍(a), 23.‍3(1)‍(a), 152.‍06(1)‍(b), 152.‍061(1)‍(a) and 152.‍062(1)‍(a) of the Act.

care means all care that is required because of the state of health of a family member referred to in subsections 23.1(2) or 152.06(1) of the Act, of a critically ill child or of a critically ill adult, other than the care provided by a health care professional. (soins)

support means all psychological or emotional support that is required because of the state of health of a family member referred to in subsections 23.1(2) or 152.06(1) of the Act, of a critically ill child or of a critically ill adult. (soutien)

(6) The following definition applies in these Regulations and in subsection 23.2(1) and 152.061(1) of the Act.

critically ill child means a person who is under 18 years of age on the day on which the period referred to in subsection 23.2(3) or 152.061(3) 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. (enfant gravement malade)

(7) The following definition applies in these Regulations and in subsections 23.3(1) and 152.062(1) of the Act.

critically ill adult means a person who is 18 years of age or older on the day on which the period referred to in subsection 23.3(3) or 152.062(3) 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. (adulte gravement malade)

2 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, to a critically ill child or to a critically ill adult.

3 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, to a critically ill child or to a critically ill adult.

4 (1) The definition period of eligibility in subsection 26.1(1) of the Regulations is amended by replacing subparagraph (a)(iv) with the following:

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

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

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

5 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, 23.2 or 23.3 of the Act, for any week of unemployment that falls in any non-teaching period of the claimant unless

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

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

8 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, of a critically ill child or of a critically ill adult, or because of any combination of those reasons, is excluded as earnings for the purposes of section 35, namely, the portion that

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

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

10 Sections 41.1 to 41.6 of the Regulations and the headings before them are replaced by the following:

Parental, Compassionate Care, Critically Ill Child and Critically Ill Adult Benefits

Medical Certificate Outside Canada

41.2 For the purposes of subsections 23.1(3), 23.2(2), 23.3(2), 152.06(2), 152.061(2) and 152.062(2) of the Act, the medical certificate referred to in subsections 23.1(2), 23.2(1), 23.3(1), 152.06(1), 152.061(1) or 152.062(1) of the Act may be issued by an individual authorized by the appropriate governmental authority of a country other than Canada to perform the work of a medical doctor or of a nurse practitioner and who has professional qualifications that are substantially similar to those of a medical doctor or of a nurse practitioner practising in Canada, if the person to whom the certificate refers is in that country.

Division of Benefits

41.6 For the purposes of subsections 23(4), 23.1(9), 23.2(8), 23.3(6), 152.05(12), 152.06(7), 152.061(8) and 152.062(6) of the Act and subject to subsections 76.21(2) and 76.42(2), if the claimants cannot agree on a division of the remaining weeks of unpaid benefits, those weeks shall be divided as follows:

11 (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, of a critically ill child or of a critically ill adult 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:

12 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, of a critically ill child or of a critically ill adult 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.

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

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

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

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

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

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

16 Paragraph 76.14(b) of the Regulations is replaced by the following:

17 Subsection 76.21(3) of the Regulations is replaced by the following:

(3) The maximum number of weeks of benefits that may be paid to the claimant under section 23 of the Act shall not be greater than

(A−B) × C⁄A

18 Subsection 76.42(3) of the Regulations is replaced by the following:

(3) The maximum number of weeks of benefits that may be paid to the self-employed person under section 152.05 of the Act shall not be greater than

(A−B) × C⁄A

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

(3) Subject to subsection (4), sections 22 to 23.3 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:

(3) Subsection 93(4.1) of the Regulations is replaced by the following:

(4.1) A claimant to whom benefits are payable under any of sections 23 to 23.3 of the Act and whose claim for benefits because of illness, injury or quarantine is made for a week that begins on or after the day on which this subsection comes into force is not disentitled under paragraph (4)(a) for failing to prove that they would have been available for work were it not for the illness, injury or quarantine.

Coming into Force

20 These Regulations come into force on the day on which section 229 of the Budget Implementation Act, 2017, No. 1, chapter 20 of the Statutes of Canada, 2017, comes 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.)

Issues

Consequential amendments to the Employment Insurance Regulations (EI Regulations) and the Employment Insurance (Fishing) Regulations (EI Fishing Regulations) are required to move forward on the mandate commitments included in the Budget Implementation Act, 2017, No. 1 (BIA 2017), Statutes of Canada, 2017, chapter 20, to provide more inclusive Employment Insurance (EI) caregiving benefits and more flexible maternity and parental benefits and corresponding leaves to further support Canadian families. More specifically, regulatory amendments are required to provide in the EI Regulations and EI Fishing Regulations references to the new 15-week caregiving benefit for a critically ill adult, introduce the definition of a “critically ill adult,” harmonize the definitions of a “family member,” “care” and “support” across all caregiving benefits (compassionate care benefit, caregiving benefit for a critically ill child or for a critically ill adult) and make other changes related to the administration of the EI caregiving benefit, such as changes regarding the medical practitioners who are permitted to issue medical certificates for caregiving benefits.

Background

Employment Insurance — Caregiving benefits

The Employment Insurance Act (EI Act) currently includes two separate caregiving benefits. The compassionate care benefit provides up to 26 weeks of benefits to eligible claimants who take time away from work to provide care or support to a seriously ill family member who has a significant risk of death in the next 26 weeks. Any EI eligible family member can claim compassionate care benefits, and weeks of benefits can be shared by eligible family members, either at the same time or one after another, over a period of 52 weeks, provided that the person receiving care is still living and requires care.

The parents of critically ill children benefit provides up to 35 weeks of benefits to eligible parents who take time away from work to provide care or support to a critically ill child under the age of 18. In order to be considered critically ill, the child’s life must be at risk as a result of illness or injury and there must have been a significant change in his/her baseline state of health. For example, a child may be ill or injured over a period of time, and then suffer a significant deterioration in health, an infection, or another new acute condition requiring additional care. Benefits can be shared among eligible parents at the same time or one after another over a period of 52 weeks, provided that the child receiving care is still living and requires care.

Employment Insurance — Maternity and parental benefits

EI maternity benefits are intended to provide temporary income support to eligible pregnant workers and new mothers who undergo the unique physical and psychological demands of giving birth and recovering from birth, for up to 15 weeks in the weeks surrounding childbirth. They are currently payable as early as 8 weeks prior to the expected week of birth, and as late as 17 weeks after the week of birth of the child.

EI parental benefits are intended to provide temporary income support to eligible parents who take time away from work to care for their newborn or newly adopted children. Parental benefits may be shared by EI eligible parents and are payable to parents while they are caring for their child, for up to 35 weeks taken at the same time or one after another. These benefits are payable during the period of 52 weeks after the birth or placement for adoption.

Budget 2017 commitments

The Government committed to provide more flexible and inclusive supports for Canadian families. In Budget 2017, the Government committed $691.3 million over 5 years, starting in 2017–2018, and $168.1 million per year thereafter to create a new EI caregiving benefit for critically ill adults of up to 15 weeks. Additionally, the Budget committed $152 million over 5 years, starting in 2017–2018, and $27.5 million per year thereafter to make EI parental benefits more flexible, allowing parents to choose to receive EI parental benefits over an extended period of up to 18 months at a lower benefit rate of 33% of the weekly insurable earnings, as an alternative to the current 35 weeks of benefits at 55% of the weekly insurable earnings which will remain in place. Budget 2017 also proposes to allow women to claim EI maternity benefits up to 12 weeks before the week of their due date — a change from the current 8 weeks — if they so choose, committing $43.1 million over 5 years, starting in 2017–2018, and $9.2 million per year thereafter.

The Government introduced legislation in the BIA 2017 to provide further temporary income support to eligible claimants (those who qualify for benefits with at least 600 hours of insurable employment, self-employed persons and fishers) as follows:

In addition to the legislative provisions in the BIA 2017, consequential regulatory amendments are also required for the implementation of the Budget 2017 commitments. These include adjustments to the EI Regulations, EI Fishing Regulations and the Insurable Earnings and Collection of Premiums Regulations.

The amendments to the EI Act and the Canada Labour Code under the BIA 2017 and the consequential amendments to the EI Regulations and EI Fishing Regulations are to come into force on the same day, on December 3, 2017.

Objectives

The objectives of these regulatory amendments are to make necessary consequential changes to enable the implementation of the legislative provisions included in the BIA 2017. These include amendments to current regulatory provisions in relation to medical practitioners who are permitted to issue medical certificates, to harmonize the definitions of an eligible “family member,” “care” and “support” across the caregiving benefits, and to provide in the regulations references to the new benefit to provide care to critically ill adults. These changes are required for the administration of the EI program.

Description

Consequential amendments to the EI Regulations and EI Fishing Regulations are required in the following areas:

  1. Create references in the existing Regulations to the new caregiver benefit to provide care to an adult family member who is critically ill;
  2. Define a “critically ill adult” for the purposes of the new benefit, with the definition mirroring that of a “critically ill child” which is already included in the Regulations;
  3. Harmonize the existing definitions of “family member” that appeared in the EI Act and EI Regulations with respect to the compassionate care benefit and extend the harmonized definition so that it applies across the caregiving benefits;
  4. Allow both medical doctors and nurse practitioners to sign the medical certificates for any of the caregiving benefits and define a “nurse practitioner;”
  5. Harmonize the definitions of “care” and “support” across the caregiving benefits;
  6. Provide the rules for dividing the remaining weeks of unpaid caregiving benefits where claimants cannot agree on a division;
  7. Define rules for dividing weeks of parental benefits for claimants who opt for the extended parental benefits in cases where claimants cannot agree on how to share remaining weeks of benefit entitlement;
  8. Create mirror provisions in the EI Fishing Regulations reflecting changes made to the EI Act and EI Regulations to ensure that fishers are treated similarly to other eligible claimants under Part I of the EI Act with regard to special benefits. In this regard, the amendments to the Fishing Regulations will adjust provisions for combining fishing benefits and special benefits (maternity, parental, sickness, caregiving benefit for critically ill children, caregiving benefit for critically ill adults, and compassionate care benefits) to align the provisions for fishers with the provisions in the EI Act;
  9. Create provisions for calculating the number of weeks of benefits available to a claimant who chooses the new 61-week parental benefit option, in cases where benefits are divided with another claimant who claims benefits under a provincial program. For this purpose, a conversion formula is provided to convert weeks at 55% of the weekly insurable earnings to weeks at 33% of the weekly insurable earnings; and
  10. In line with the provisions of the EI Act, clarify in the EI Fishing Regulations that extensions to the benefit period due to combining special benefits are not to exceed 104 weeks.

Additionally, an amendment to the EI Regulations is required to correct existing discrepancies between the English and French versions of the Regulations related to compassionate care benefits (correcting a reference to the EI Act). This change is technical only (ensuring the French text matches the English text) and corrective in nature.

Regulatory and non-regulatory options considered

The regulations are required for the implementation of the amendments to the EI Act introduced in the BIA 2017. Non-regulatory options were not considered.

“One-for-One” Rule

The “One-for-One” Rule does not apply to this proposal, as the amendments do not impose a new administrative burden on employers. There is no new burden imposed on medical doctors. In providing nurse practitioners with the authority to also sign medical certificates, the legislative and regulatory amendments aim at reducing the burden on medical specialists and medical doctors and thereby improving access for claimants to EI caregiving benefits.

Small business lens

The small business lens does not apply to this proposal, as there are no direct costs to small business resulting from the regulations. Some employers have noted that they may wish to adjust their employer-based supplementary benefit plans and collective bargaining agreements to align with the 61-week EI parental benefit option, as well as the new caregiving benefit for a critically ill adult. This may result in a one-time administrative cost to their business.

Consultation

Consultations on the amendments to the EI Act contained in the BIA 2017 took place in the fall of 2016. This included online consultations on caregiving, maternity, and parental benefits and related leaves under the Canada Labour Code, as well as a stakeholder roundtable. Stakeholders include parents, family caregivers, claimants who may benefit from more flexible leave from employment and EI benefits to care for a critically ill family member, employers, labour organizations, academics, medical practitioners and health advocates. Stakeholders shared a variety of positive views, as well as concerns about the proposed options including the ability of parents and caregivers, particularly women, to maintain workforce attachment. Parents are expected to welcome the additional flexibility and choice with regard to maternity and parental benefits and corresponding leaves.

Stakeholder groups contacted included the Forum of Labour Market Ministers, the Canadian Association of Administrators of Labour Legislation, the Canadian Payroll Association, and the Vanier Institute for the Family, and included meetings, letters, email notifications, and updates to the Canada.ca website. Direct consultations were also conducted with the medical community.

Some employers, including small and medium businesses, and labour groups, raised concerns with a longer duration of parental benefits and leaves that some companies may not be able to afford to incur because of the direct and indirect costs associated with backfilling positions for employees who take longer leaves, recruitment and training costs, employer-based benefits for employees while on leave, as well as increased EI premiums. Employers and labour organizations may also be affected as the legislative and regulatory amendments may have implications for employer supplementary benefits (top-ups) and collective bargaining agreements. There was strong support for a broader range of medical caregiving situations and the expansion of the list of eligible medical practitioners who could issue a medical certificate. Medical and health professionals advocated and expressed support for more inclusive caregiving options.

With regard to the amendments to the regulations, stakeholder engagement has been conducted through summer 2017, including with employer groups, labour organizations, payroll professionals, medical practitioners, and health advocates.

Rationale

The BIA 2017 contains amendments to the EI Act to provide additional flexibility in maternity and parental benefits and create a new caregiving benefit to support workers who provide care to critically ill adult family members. Regulations are required to implement the legislative amendments and ensure that existing regulatory provisions reflect the amendments to the EI Act.

The regulations do not constitute policy changes in and of themselves. Rather, they are consequential to policy changes made through the BIA legislation and are enabling in that regard for the purpose of the administration of the EI program. With regard to the EI Fishing Regulations, amendments aim at mirroring changes made to the EI Act and the EI Regulations, and are to ensure that fishers continue to be treated in a similar manner to insured and self-employed persons under the Act.

Program costs derive from the amendments to the EI Act introduced in the BIA 2017 and, as such, are not specifically associated with these consequential regulatory amendments.

Implementation, enforcement and service standards

A communication plan has been developed to raise awareness of upcoming changes in both the EI Act and related regulations, to provide information, to manage expectations and to undertake outreach with key stakeholders.

Existing implementation and enforcement mechanisms contained in Employment and Social Development Canada’s adjudication and control procedures will ensure that these regulatory amendments are implemented properly.

Regarding service standards, the regulatory amendments are not expected to have a significant impact on EI service standards.

Contact

Andrew Brown
Acting Director General
Employment Insurance Policy
Skills and Employment Branch
Employment and Social Development Canada
140 promenade du Portage, 7th Floor
Gatineau, Quebec
K1A 0J9
Telephone: 819-654-6849
Fax: 819-934-6631