Qualifying for Employment Insurance (8:III)

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.

Disputes concerning s 90(1) of the EI Act including:

• 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);

are determined solely by the Canada Revenue Agency (CRA). 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 in insurable employment for a specific period of time. This period is determined by several factors that are explained below. The premium period is calculated based on hours of insurable employment. The required number of hours of insurable employment must be accumulated during the claimant’s “qualifying period”. 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); or
• b) the period between the beginning of a prior claim and the beginning of the present one.

2. Extensions of the Qualifying Period

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 he or she was unable to work during any of the weeks of the qualifying period because of:

• a) illness, injury, quarantine, or pregnancy;
• b) attendance in a course which he or she was referred to by HRDC; or
• c) 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 (c) 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 (c) as a ground to extend the qualifying period.

Also, since June 30th 2013, individuals who are incarcerated and found guilty of an offence for which they are being detained will no longer be able to have their Employment Insurance qualifying and/or benefit periods extended beyond the usual 52 weeks for each week they are confined in a jail, penitentiary or similar institution.

Section 8(3) allows the Commission to extend the qualifying period for persons who were receiving compensation arising from the “complete severance” of a previous employment relationship during the benefit period (e.g. severance pay paid following dismissal).

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 qualifying period can never be extended to include a period of time prior to the filing of a previous claim. In other words, 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 classified differently depending on their prior “attachment” to the labour market. Major attachment claimants will be able to receive special benefits (See Section VI: Types of Benefits).

a) Major Attachment Claimants

A major attachment claimant is defined in s 6(1) as a claimant who qualifies to receive benefits and who has 600 or more hours of insurable employment in their qualifying period.

Major attachment claimants are eligible for all types of “special” benefits (e.g. pregnancy, parental, and sickness).

b) Minor Attachment Claimants

A minor attachment claimant is defined in s 6(1) as a claimant who qualifies to receive benefits and has fewer than 600 hours of insurable employment in their qualifying period.

Minor attachment claimants cannot receive most special benefits.

c) New Entrants or Re-entrants

A new entrant, or re-entrant, is defined in s 7 as a person who, in the last 52 weeks before the qualifying period, had less than 490 hours of the following:

• a) hours of insurable employment;
• b) hours for which benefits have been paid or were payable to the person calculated on the basis of 35 hours for each week of benefits;
• c) prescribed hours that relate to employment in the labour force; or
• d) hours comprised of any combination of those hours.

A new entrant, or re-entrant requires 910 hours of insurable employment in their qualifying period, regardless of the rate of unemployment in their region, which qualifies them to be major attachment claimants.

NOTE: Under subsection 4.1 of s 7 of the EI Act, parents just returning to the workforce who received one or more weeks of special benefits (see Section VI: Types of Benefits) in the previous five years are not classified as new entrants or re-entrants. They can qualify for benefits with the same number of hours as regular attached workers.

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

All new entrant or re-entrant claimants must accumulate 910 hours of insurable employment during their qualifying period, which entitles them to be major attachment claimants. Regional tables of unemployment are not relevant to the 910 hour requirement.

For all other claimants to receive the regular benefits, they must meet their s. 7 Table requirements during the qualifying period.

The number of hours required to qualify for benefits is based on the unemployment rate of the region in which the claimant lives. HRDC relies on Statistics Canada’s Labour Force Survey and its “seasonally adjusted average unemployment rate”. Note that several features of the Labour Force survey make the official unemployment rate appear much lower than it actually is. The current rate of unemployment for each region can be found at: http://www.hrsdc.gc.ca/eng/employment/ei/economic_regions/index.shtml.

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