Digest of Benefit Entitlement Principles  Chapter 10 - Section 11

10.11.0 Health and physical capabilities

Individuals claiming regular benefits and seeking to re-enter the labour force as soon as possible, must be physically able to perform the types of work under various conditions of employment expected by employers. Claimants who are unable to work or incapable of working, are not entitled to regular benefits.

10.11.1 Authority

The legislation indicates that a claimant is not entitled to be paid benefits for any working day in a benefit period, for which the claimant fails to prove that, on that day, the claimant was capable of working ^{Footnote 1} . However, the legislation does not expect claimants to seek and accept employment that is not suitable. The legislative requirements address the issue of a claimant’s health and physical capability, indicating that one of the criterion for determining what constitutes suitable employment is:

"the claimant’s health and physical capabilities allow them to commute to the place of work and to perform the work. ^{Footnote 2} "

10.11.2 A fixed criteria

Unlike the two criteria related to offered earnings and type of work ^{Footnote 3} , there is no reference in the legislation to health and physical capabilities in comparison with a claimant’s previous pattern of work in the qualifying period. In addition, and again unlike the criteria for offered earnings and type of work where claimants are allowed specific time frames while in receipt of benefits to restrict their acceptance of work ^{Footnote 4} , the criterion in the legislation regarding health and physical capabilities of work does not vary based on the period of time that has elapsed in the benefit period.

Consequently, notwithstanding any pattern of work in the qualifying period, claimants are, from the beginning of their claim, expected to be capable of work that is available in the labour market ^{Footnote 5} .

10.11.3 Application

Obviously claimants cannot be considered to be capable of work if they say that they are physically unable to work, or if they are in fact unable to work ^{Footnote 6} . In this case, the question to decide is whether entitlement to sickness benefits has been proven. This subject is covered in Chapter 11 of this Digest.

Claimants are considered physically unable to work when their inability is such that it rules out almost any possibility of obtaining employment in an occupation that is considered to be otherwise suitable pursuant to the legislation ^{Footnote 7} . Every situation must be examined based on the claimant’s individual circumstances.

For example, the legislation allows a "long tenured worker" to restrict their job search to the same occupation in which they worked during their qualifying period, for the first 18 weeks of their claim ^{Footnote 8} . If the claimant’s health and physical condition prevents the possibility of obtaining such employment, and the claimant is unwilling to accept other types of work, the claimant would be considered unable to work, and the question to consider would be whether or not theyare entitled to sickness benefits. However, this claimant may be willing to accept other types of work. If so, assuming there are reasonable opportunities for such employment in the labour market, the claimant should be considered available for and capable of work, and they would be entitled to regular benefits.

After the first six weeks of their claim, "frequent claimants" must be willing to seek and accept work in any occupation in which they are qualified to work ^{Footnote 9} . If their health and physical condition prevent any possibility of working in any of these occupations, the question to consider would be whether or not the claimant is entitled to sickness benefits. However, if their health and physical condition prevent the possibility of working in certain occupations only but does not rule out working in other occupations, then the claimant would have to be willing to seek and accept these other types of work to be entitled to regular benefits.

A worker who misses work temporarily due to illness or injury, may still be capable of performing less strenuous tasks. However, such a job attached claimant would nevertheless be considered physically unable to work if, for all intents and purposes, there is little or no chance of finding suitable work pending recovery and resumption of work.

Claimants who have received the maximum number of weeks that can be paid as sickness benefits, cannot subsequently claim regular benefits by saying that they are now capable of and available for work, unless their physical condition has clearly improved. It is inconceivable that one's physical condition can support a finding of incapability as well as a finding of capability ^{Footnote 10} .

It is also possible for claimants to prove incapacity with respect to a limited number of working days in a week, and be capable of and available for work on the other working days. Since incapacity as well as availability for work must be given consideration on a day-to-day basis ^{Footnote 11} , this situation may be acceptable. Incapacity for less than the five working days in a particular week would not affect the claimant’s ability to receive 15 weeks of sickness benefits later in the benefit period, if they meet the entitlement conditions.

Minor attachment claimants whose interruption of earnings was caused by incapacity, and who are now capable of working, but for less than five working days, will be subject to disentitlement, for each working day they are incapable of working ^{Footnote 12} .

A distinction must be made between a handicapped worker and one who has had to leave work as a result of a recent disability. Where a person has worked in insurable employment while suffering from a permanent partial disability, the person would be insured against the risk of unemployment in that context.

At no point during the benefit period should such a disability or handicap be considered in assessing prospects of employment. Claimants in this situation are only required to be available within the full extent of their partial capability. Their reduced physical condition will also be considered in assessing what amounts to reasonable efforts on their part to find work. Restrictions imposed on their availability, which do not arise out of their disability, may lead to disentitlement.

10.11.4 Pregnancy and childbirth

Pregnancy and childbirth do not in themselves disentitle a claimant from benefits. The following discussion does not apply where a claim is for maternity rather than regular benefits.

The situations which most often come into play can be divided into three groups: voluntary unemployment as a result of the pregnancy; pregnancies with complications; and pregnancies with no complications. Naturally, a claimant does not demonstrate that she is available if she states that she is unable to work or if she is actually unable to work because of the pregnancy.

Leaving employment voluntarily because of pregnancy strongly suggests that a claimant is unavailable, because her departure indicates that either her ability to work is reduced or she simply prefers not to work. The same is true of a claimant who asks for a leave of absence rather than continuing to work or neglects to avail herself of an opportunity of suitable employment ^{Footnote 13} . The onus is on the claimant to disprove this presumption by showing that her decision to leave the job or to refuse work does not detract from her ability or willingness to work, and that she is still actively seeking work that she could reasonably hope to obtain.

As for pregnancies with complications, the first question to determine is whether the claimant is incapable of work within the meaning of that word, as found in the legislation and whether she is entitled to sickness benefits. If not entitled, an assessment must be made of the extent to which her condition reduces prospects of employment.

Unless there are reasonable employment opportunities and her willingness to work is evidenced by her actions, the claimant will fail to prove that she is capable of and available for work.

While there may be no complications, a claimant may suffer from temporary illnesses at the outset of a pregnancy, which could, for short periods, prevent her from performing her usual duties. In such cases, the employee is expected to request leave until she is able to return to work. Otherwise, she will be considered as voluntarily unemployed as a result of the pregnancy.

Claimants who lose their jobs while pregnant, but do not do so voluntarily, will be considered available for work, provided that their actions demonstrate a willingness to work. Pregnancy will not be considered an obstacle to obtaining employment. Failure to make the required effort to return to her usual job after having the baby, or to make the necessary child care arrangements so that she can actively seek work, may suggest that the claimant does not wish to return to the labour force. Clearly, such behaviour is not evidence that the claimant is available for work ^{Footnote 14} . In situations where the claimant has attempted to make child care arrangements but has been unable to do so due to the unusual timetable in the employment offered, she may be considered available, provided she has made adequate arrangements for normal working hours.

[ January 2014 ]