Qualifying for Employment Insurance (8:III)

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on August 15, 2022.

A. Insurable Employment

Sections 5(1) and (2) of the EI Act set out what is and what is not insurable employment. Please note that s 5(2) outlines specific instances of employment that are not insurable (i.e. employment in Canada by an international organization, by a foreign government, or by Her Majesty in right of a province). When in doubt, the reader should consult s 5 of the EI Act, and s 3 of the EI Regulations.

Generally, if the employer has deducted EI premiums, then the employment is insurable. However, it is the nature of the employment, and not the premiums paid, that is determinative.

Some disputes are determined solely by the Canada Revenue Agency (CRA). These disputes concern s 90(1) of the EI Act, and include:

a) whether employment is insurable;

b) how long employment lasts, including the dates on which it begins or ends;

c) the amount of any insurable earnings;

d) how many hours an insured person has had insurable employment;

e) whether a premium is payable;

f) the amount of a premium payable;

g) who is the employer of an insured person;

h) whether employers are associated employers; or

i) what amount shall be refunded under s 96(4) - (10);

Appeals of decisions by the CRA are made first to the Minister of National Revenue (within 90 days of being informed of the decision), and then to the Tax Court of Canada (EI Act, s 103). Tax Court decisions can be appealed to the Federal Court of Appeal under s 27 of the Federal Court Act, RSC 1985, c. F-7.

Workers with insurable earnings below $2,000 will have their premiums refunded.

B. Qualifying Period

1. General

To qualify for EI benefits, a claimant must have worked a certain number of hours of insurable employment during the claimant’s qualifying period. The required number of hours may vary according to the location of the claimant, and the unemployment rate in the region they live in. The definition of qualifying period is set out in s 8(1) of the EI Act. This is usually the shorter of either:

a) the 52 weeks immediately before the benefit period commences under s 10(1);

b) the period that begins on the first day of an immediately preceding benefit period and ends with the end of the week before the beginning of a benefit period under s 10(1). I.e., the period between the beginning of a prior claim and the beginning of the present claim.

2. Extensions of the Qualifying Period

However, the qualifying period may be extended (i.e. the Commission will look further back in time) up to a maximum of 104 weeks, as set out in ss 8(2)(a)-(d). It may be extended if the claimant can prove that they were unable to work during any of the weeks of the qualifying period because of:

a) illness, injury, quarantine, or pregnancy;

b) confinement in a jail, penitentiary or other similar institution and was not found guilty of the offence for which the person was being held or any other offence arising out of the same transaction;

c) receiving assistance under employment benefits; or

d) the claimant has left the job due to hazardous work or working conditions. This covers situations where the claimant has ceased to work because to continue would have entailed danger to the worker, the worker’s unborn child, or a child whom the worker is breast-feeding.

NOTE: The extension under (d) is limited to situations where a worker would receive payments under provincial law. Many provinces, including BC, do not yet provide for such payments. Consequently, BC workers cannot use (d) as a ground to extend the qualifying period.

The absolute maximum extension of a qualifying period is 104 weeks (two years). After 104 weeks, no extensions can be made to the claimant’s qualifying period.

NOTE: The same insurable hours can never be used for two separate claims.

C. Minimum Hours of Employment Required

1. Types of Claimants (As Defined By the EI Act)

Claimants are normally classified depending on their prior “attachment” to the labour market. However, due to COVID-19, there are temporary measures that may or may not be extended after September 24th, 2022. Please check the CRA website for the most up to date information. The temporary measures are as followed: insured person qualifies for regular and special benefits if the person has had an interruption of earnings from employment (see part D below); and has had during the qualifying period at least 420 hours of insurable employment. See section 7 of the EI Act for more details.

2. Youth and EI

As long as a minor is employed in insurable employment and is paying into the plan, a minor is eligible in the same manner as an adult.

3. Hours Required

Until September 24, 2022, a claimant needs 420 hours of insurable employment during the qualifying period to qualify for EI benefits. After September 24, 2022, a claimant will need between 420 hours and 720 hours during the qualifying period depending on the regional unemployment rate.

Look up EI Economic Region by Postal Code to find out the unemployment rate in your region and the number of hours to qualify for regular benefits https://srv129.services.gc.ca/ei_regions/eng/postalcode_search.aspx

NOTE: The number of hours that an insured person needs under s 7 to qualify for benefits is increased to the number shown under s 7.1(1) if one or more violations has occurred in the 260 week period prior to the initial claim (see Section IX: Keeping Out of Trouble).

D. Interruption of Earnings

To establish a claim, the worker must have an “interruption of earnings.” An interruption of earnings is defined as:

Seven or more consecutive days during which the employee performs no work and for which the employee will receive no earnings. (EI Regulations, s.14)

Layoff, the end of a contract and dismissal can all be causes of an interruption of earnings.

A substantial reduction in the hours of work (for example, from full time to one day a week or less) does not meet the definition of interruption of earnings for regular benefits. Consequently, a worker whose hours are drastically reduced cannot establish a claim unless they have a full week of unemployment. The only exception is for special benefits. However, if there is an interruption of earnings from one of two part-time jobs with the same employer, then the claimant could qualify.

NOTE: In the case of special benefits, an interruption of earnings occurs when a worker experiences a reduction in earnings of more than 40% of the person’s normal weekly earnings.

1. Weeks of Unemployment

“Week of unemployment” is defined in s 11(1) of the EI Act: “A week of unemployment for a claimant is a week in which the claimant does not work a full working week”. However, the following subsections of s 11 describe situations which do not amount to an interruption of earnings as defined in s 14.

E. Record of Employment

An employer who completes a paper form must provide an employee with a Record of Employment (ROE) five days after the first day of the interruption of earnings, or the day on which the employer becomes aware of the interruption of earnings.

However, if the ROE is completed in electronic form, it must be sent to the Commission no later than 5 days after the end of the pay period in which the first day of the interruption of earnings fell. The rules for this are set out in s 19(3.1) of the EI Regulations. If there are 13 or fewer pay periods in a year, then the ROE must be sent to the Commission no later than 15 days after the first day of the interruption of earnings. An employer who completes a ROE in electronic form is not required to send a copy to the employee.

The ROE contains information important to the EI claim. It sets out the first and last dates of work, the total hours worked and the total earnings, which are used to determine the amount of benefits payable and it also sets out the reason for separation. If it says that the claimant quit or was fired, the Commission must investigate the reasons. Depending on the conclusions of the Commission, the claimant may be disqualified from all regular benefits (see Section V.D: Effect of Earnings).

NOTE: It is important that claimants who have worked more than one job during the qualifying period retain the ROEs from each employer.

If the claimant disagrees with statements in the ROE, they can ask the employer to correct them. The claimant should also bring the errors to the Commission's attention at the time of application.

F. Filing an Application

Applications should be filed during the first full week of unemployment (see Appendix A: Checklist for Initial Application for EI Applications). However, as a matter of policy, applications will be automatically “antedated” (see Section V.B: Antedating) for up to four weeks following the week of the interruption of earnings. If the claimant delays longer than this, they may lose benefits unless they are able to show “good cause” for the delay. Because of this, if a claimant cannot get a ROE immediately, they should still go to the nearest Canada Employment Insurance Commission office and complete an application. Usually, the Commission will want to have an ROE before they process the claim. However, claimants should always ensure they apply on time even if they do not yet have their ROE. The Claimant should make efforts to get the ROE from the employer. If the Claimant is unsuccessful the Commission will contact the employer if the record is not completed on time. If necessary, a claimant may prove their employment history and insurable earnings by filing an application supported bypay slips and cheque stubs, etc.

NOTE: Applications may be filed online through the ESDC web site. Applicants filing online must still submit their ROE(s) by mail or in person. If the claimant’s ROE has a “W” or “S” serial number, their employer has provided ROE electronically to the local office and the claimant is not required to submit the paper copy. Claimants may review and edit their claim information online by using the “MyEI Information on-line” service provided by Service Canada.

For general information about filing an application and about the EI system visit: https://www.canada.ca/en/services/benefits/ei/ei-apply-online.html.