Changes to EI benefits came into effect December 3, 2017

As part of the 2017 Budget, the federal government announced a number of significant changes to the insured benefits available under the Employment Insurance Act.  These changes were set out in Bill C-44, the Budget Implementation Act, 2017, No. 1 (“Bill C-44”), which received Royal Assent in June. The changes also create a new employment insurance benefit, referred to as the “Adult Caregiver Benefit”, and expand the availability of other insured benefits.

In November, the federal government announced that the changes would come into effect on December 3, 2017 and published the amending regulation.  The Canada Labour Code is also being amended to provide expanded job protection consistent with the changes to employment insurance.  Ontario has amended the leave of absence provisions in the Employment Standards Act, 2000 (set out in Bill 148, Fair Workplaces, Better Jobs Act, 2017) to reflect the changes to employment insurance. Those amendments also took effect on December 3, 2017.

Extended Parental Benefit

Bill C-44 introduced an “Extended Parental Benefit”.  Parents will now be able to choose between the “standard” 12 month benefit and the “extended” 18 month benefit.  Under the standard option, a maximum of 35 weeks of parental benefits is available and can be divided between parents however they choose.  The 35 weeks must be in the 12 months after the child is born or adopted.  An individual applying for this benefit may receive 55% of their individual average weekly earnings up to a maximum of $543 per week in 2017.

The “extended” option allows parents to receive parental benefits for up to 61 weeks.  Like the standard option, the 61 weeks can be divided between parents in any manner they choose.  This benefit must be taken in the 18 month period following the child’s birth or adoption.  An individual will receive 33% of their individual average weekly earnings up to a maximum of $326 per week in 2017.   Under either of these two options, the total amount paid in EI benefits is roughly the same.  When applying for this benefit, the parents must choose the same option and each parent must indicate how many weeks they intend to take.  Parents can receive benefits at the same time or separately. The parents’ election must be made prior to any parental benefits being paid.

Bill C-44 also extends the period of job-protected parental leave under the Canada Labour Code. Employees who have completed six consecutive months of continuous employment will become entitled to a leave of absence of up to 63 weeks to care for a newborn or adopted child (currently 37 weeks).

Earlier Access for Maternity Benefit

Bill C-44 also changes the timing for the availability of the EI maternity benefit.  Prior to the amendments the maternity benefit was available up to 8 weeks prior to an employee’s due date.  Eligible pregnant workers are now able to access the maternity benefit up to 12 weeks before the due date or up to 17 weeks after the date of childbirth.  The duration of the maternity benefits are unchanged and remain at 15 weeks.  Workers can receive 55% of their average weekly earnings up to a maximum of $543 per week in 2017.

New Adult Caregiver Benefit

Perhaps the most significant change in Bill C-44 is the introduction of the new Adult Caregiver Benefit.  Adults who are unable to work because they must provide care to a critically ill or injured adult family member are entitled to an EI benefit of up to 15 weeks in a 52 week period.  The term “family member” is given the following expansive definition in the regulation:

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

1. the spouse or common-law partner of the individual;
2. a child of the individual or a child of the individual’s spouse or common-law partner;
3. a parent of the individual or a spouse or common-law partner of the parent;
4. a child of the individual’s parent or a child of the spouse or common-law partner of the individual’s parent;
5. a grandparent of the individual or of the individual’s spouse or common-law partner or the spouse or common-law partner of the individual’s grandparent;
6. a grandchild of the individual or of the individual’s spouse or common-law partner or the spouse or common-law partner of the individual’s grandchild;
7. the spouse or common-law partner of the individual’s child or of the child of the individual’s spouse or common-law partner;
8. a parent, or the spouse or common-law partner of a parent, of the individual’s spouse or common-law partner;
9. the spouse or common-law partner of a child of the individual’s parent or of a child of the spouse or common-law partner of the individual’s parent;
10. a child of a parent of the individual’s spouse or common-law partner or a child of the spouse or common-law partner of the parent of the individual’s spouse or common-law partner;
11. an uncle or aunt of the individual or of the individual’s spouse or common-law partner or the spouse or common-law partner of the individual’s uncle or aunt;
12. a nephew or niece of the individual or of the individual’s spouse or common-law partner or the spouse or common-law partner of the individual’s nephew or niece;
13. a current or former foster parent of the individual or of the individual’s spouse or common-law partner;
14. a current or former foster child of the individual or the spouse or common-law partner of that child;
15. a current or former ward of the individual or of the individual’s spouse or common-law partner;
16. a current or former guardian of the individual or the spouse or common-law partner of that guardian;
17. a person, whether or not related to the individual by marriage, common-law partnership, or any legal parent-child relationship, whom the individual considers to be like a close relative or who considers the individual to be like a close relative.

In order to be eligible to receive this benefit, applicants must obtain a medical certificate that states:

• there has been a significant change in the patient’s health;
• the patient’s life is at risk as a result of injury or illness;
• the patient requires the care or psychological/emotional support of one or more family members.

The medical certificate can be signed by a medical doctor, or a nurse practitioner.  This benefit may be combined with the compassionate care benefit which provides benefits for up to 26 weeks if a family member has a serious medical condition with a significant risk of death.

Benefits for parents of critically ill children

Bill C-44 enhances the existing benefit for those who are unable to work because they are providing care for a critically ill child under the age of 18.  This benefit, which provides for a maximum of 35 weeks, was previously available only to parents.  Bill C-44 expands the availability to any “family member” as defined by the regulation (see the definition above).

The 35 week maximum may be shared between family members.  As is the case with other caregiver benefits, a medical certificate which states that the child is critically ill is required.  In order to increase accessibility to this benefit, the medical certificate can now be signed by a medical doctor or a nurse practitioner.  Previously, the signature of a medical specialist was required.  This benefit may also be combined with the existing compassionate care benefit which provides up to 26 weeks where a family member has a critical condition with a significant risk of death.

In our view

The eligibility criteria for the various EI benefits is unchanged.  Applicants will need to have 600 insurable hours of work in the 52 weeks preceding the claim.  Employers should consider reviewing any collective agreements and employment contracts to determine whether any provisions will need to be revised or possibly re-negotiated in light of the Bill C-44 amendments. In particular, employers who offer their employees a top-up during parental leave will want to give close consideration to the potential impacts of these changes and how those impacts should be addressed.