Digest of Benefit Entitlement Principles   Chapter 9 - Section 4

9.4.1.1 Claimant's health and physical capabilities

The claimant's health and physical capability is one of the six criteria used to determine what constitutes suitable employment. Specifically, the EI Regulations state, "the claimant's health and physical capabilities allow the claimant to commute to the place of work and perform the work" ^{Footnote 5} .

This is one of the four non-variable or fixed criteria for determining suitability of employment and is not affected by what occurred in the claimant's qualifying period, or by the number of weeks the claimant has been on claim.

Consequently, from the beginning of their claim for benefits, and throughout the duration of that claim, whether the claimant's health and physical capabilities allow the claimant to commute to the place of work and perform the work involved, must be examined to determine if employment is suitable.

In many cases, particularly when the claimant has performed the potential employment under similar or identical circumstances in the past, there may be no reason to examine this issue. However, each situation must be examined on its own merits, particularly when there is already evidence from the claimant concerning their capability, or if the claimant indicates that their health or physical capabilities were a factor in refusing the employment. The Commission must obtain all relevant facts to determine the extent to which the claimant's health and capabilities prevented them from pursuing the employment.

If health reasons or physical capabilities place significant limitations on a claimant's ability to accept specific types of work, working conditions (including heavy or outside work or other aggravating conditions), hours of work (including shift work and night work) or daily commuting distance, then the employment becomes unsuitable.

When a claimant indicates health or physical capabilities as the reason for not pursuing otherwise suitable employment, it may have to be supported by medical evidence. However, detailed and convincing explanations, first-hand observations and plausible or credible statements, including evidence concerning the claimant's age and previous work experience, may be acceptable when a physician has not been consulted.

Pregnancy does not in itself render a person incapable of work and therefore not available for work. The situation could in fact vary from one person to another. Any employment offered during a period where the claimant is claiming maternity benefits is not suitable. However, a claimant's pregnancy does not render an otherwise suitable employment unsuitable, if the claimant is claiming regular benefits. Consequently, permanent work may be suitable for a pregnant claimant who is available for only a few months; rather than refuse the opportunity outright she should contact the employer and allow the employer to decide whether or not to hire her. A claimant who refuses to return to work after the end of her maternity leave has voluntarily left employment ^{Footnote 6} . This does not fall under the job refusal provision.

[ April 2014 ]

9.4.1.2 The hours of work

The extent to which the hours of work at a place of employment are compatible with the claimant's family obligations or religious beliefs is another of the six criteria used to determine what constitutes suitable employment. Specifically, the EI Regulations state, "the hours of work are not incompatible with the claimant's family obligations or religious beliefs." ^{Footnote 7}

Unlike the two criteria related to offered earnings and type of work ^{Footnote 8} , there is no reference in the legislation allowing a comparison of available hours of work to 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 a specific period of time, to restrict the type of work they are willing to seek and accept, the legislative criteria for hours of work has no time frame provision or flexibility.

Consequently, with only a few exceptions and from the beginning of their claim for benefits, claimants are obligated to seek and accept any hours of work, including full-time, part-time, evenings, nights and shift work, as well as work that may involve inconvenient or long hours, or overtime.

As an exception, hours of work are not suitable if they are incompatible with the claimant's family obligations. In order to avoid such an incompatible situation, and to establish their availability for work, claimants are expected to make arrangements for the care of family members, that will allow them to accept the hours of work that are available in the labour market. In some instances it may even be possible to make arrangements with the employer to adjust the hours of work in order to accommodate a claimant's circumstances. However, the fact that the employer cannot adjust the hours of work to accommodate the claimant would not necessarily render the employment unsuitable. It is not the employer's responsibility to adjust the hours, but rather it is the claimant's responsibility to be willing to accept all reasonable hours of work. Inability or unwillingness to make every attempt to make alternate care arrangements could reveal that an availability issue exists. Availability is a separate issue that is considered based on all of the circumstances of the case, and discussed in Chapter 10 of this Digest.

There may also be situations where certain hours of work or days of the week are incompatible with a claimant's religious beliefs. If accepting certain hours or days of work would be inconsistent with a particular religious belief or conviction, and again if it is not possible to adjust the hours or days of work, then the employment may be considered unsuitable.

In addition, there may be circumstances where certain hours or even days of work are not suitable because one of the other criteria for determining suitability of employment is not met. For example, a claimant may be able to work on a part-time basis but is physically incapable of accepting work on a full-time basis ^{Footnote 9} ; or the offered earnings for intermittent part-time work could be such that the claimant would be put in a "less favourable financial situation" by accepting the employment ^{Footnote 10} . In these circumstances the employment may not be suitable.

The fact that the employer's hours of work are incompatible with a claimant's family obligations or religious beliefs, and that the incompatibility cannot be resolved by the claimant, may indicate that the claimant's willingness and/or ability to work are doubtful ^{Footnote 11} or that there are severe limitations on the claimant's availability ^{Footnote 12} . All cases will be considered based on all of the claimant's individual circumstances.

[ April 2014 ]

9.4.1.3 The nature of the work

The extent to which the nature of the work at the place of employment is contrary to the claimant's moral convictions or religious beliefs is the third of six criteria used to determine what constitutes suitable employment. Specifically, the EI Regulations state, "the nature of the work is not contrary to the claimant's moral convictions or religious beliefs" ^{Footnote 13} .

Again this is a criterion that is one of the four non-variable or fixed criteria for determining suitability of employment, and is not affected by what occurred in the claimant's qualifying period, or by the number of weeks the claimant has been on claim.

When the claimant indicates that the nature of the work is contrary to their moral convictions or religious beliefs, it is the nature of the employment itself, the duties, hours, working conditions and environment that must be examined in this regard. It is only when one or more of these factors are clearly shown to be contrary to the claimant's moral convictions or religious beliefs, and that the employer is unwilling or unable to accommodate those convictions or beliefs, that the employment would be deemed unsuitable.

Generally, the moral conviction or religious beliefs should be those recognized by society at large, and not something that is unsubstantiated. For example, working in a meat processing plant may be morally reprehensible to some claimants. Likewise, being required to work on a religious day of observance may be clearly contrary to the religious beliefs of some. In these instances the moral conviction or religious belief is one that is recognized by society.

However, if the claimant's moral convictions or religious beliefs mean that a claimant imposes significant restrictions on their ability or willingness to accept work ^{Footnote 14} , this may indicate that there are more serious limitations on the claimant's availability for work ^{Footnote 15} .

[ April 2014 ]

9.4.1.4 Daily commuting time

The daily commuting time to and from the place of work is another of the six criteria used to determine what constitutes suitable employment. Specifically, the EI Regulations state:

1. the daily commuting time to or from the place of work is not greater than one hour or, if it is greater than one hour,
2. it is not greater than the claimant's commuting time to or from their place of work during the qualifying period, or
3. it is not uncommon given the place where the claimant resides ^{Footnote 16} .

Unlike the two criteria related to offered earnings and type of work where claimants are allowed specific time frames during their claim ^{Footnote 17} , to restrict to specific types of work or wages, there is no such flexibility in the legislative criteria on commuting time.

Consequently, with only a few exceptions, and from the beginning of their claim for benefits, claimants are obligated to seek and accept all suitable employment where the commuting time is within the above mentioned time frames. This applies whether they live in a remote, rural, urban or suburban area.

For example, a claimant resides in Parry Sound, Ontario. Employment in Huntsville, Ontario, with a daily one way commute of 45 minutes would be suitable. Employment in Gravenhurst, Ontario, with a daily one way commute of one hour and 20 minutes would be suitable even though it is more than one hour, if the claimant had worked in employment in his qualifying period where the daily one way commute was at least one hour and 20 minutes.

However, employment in Bracebridge, Ontario, with a daily commute of one hour and ten minutes may not be suitable if the claimant was not required to commute at least one hour and ten minutes for employment at any time during his qualifying period. The Commission must then consider what is ‘not uncommon' in the area where the claimant resides. In other words, it would have to be determined whether a daily one way commute time of one hour and ten minutes is "not uncommon" for residents of Parry Sound. If it is not uncommon, then the commuting time would be considered suitable.

Commuting time can be affected by start and end times at the place of employment, particularly in areas of higher populations. In some cases employers may be flexible and permit employees to have different start and end times that could significantly resolve commuting time issues. In those cases claimants should enquire about flexible hours, particularly if the commuting time would otherwise be greater than the above mentioned criteria.

There may be circumstances where a certain commuting time would not be suitable because one of the other criteria for determining suitability of employment is not met. For example, a claimant may have family obligations, or health restrictions that would not allow a lengthy daily commute ^{Footnote 18} ; or the cost of commuting to an intermittent part-time job could be such that the claimant would be put in a "less favourable financial situation" ^{Footnote 19} ; or the type of work or offered earnings are not suitable as defined in the regulations ^{Footnote 20} .

When assessing commuting time, reference must be made to the mode or modes of commute, or means of transportation, commonly used in the place where the claimant resides ^{Footnote 21} . Claimants are expected to use the means of transportation commonly used in their place of residence, and are also expected to absorb the cost of that transportation. This could involve walking, taking a bus, driving, taking a train or subway, car-pooling with co-workers, or using a combination of those means of transportation, even if part of the commute time is spent waiting for one of them. However, claimants are not expected to walk several kilometers at night or to hitchhike.

Claimants are expected to make reasonable efforts to arrange for transportation to the place of work, including if necessary, requesting assistance from the prospective employer. It is only in unusual circumstances or where the claimant has exhausted all efforts to arrange for transportation, and where there is a complete absence of transportation to the place of work, that the employment would become unsuitable. However, there is a presumption of non-availability for work if the claimant does not have transportation arrangements in place that would allow them to accept employment to the same extent as other workers residing in that community ^{Footnote 22} .

[ April 2014 ]

9.4.2.1 Three categories of claimants

The extent to which a claimant has contributed to the Employment Insurance fund and received regular benefits in the past, will determine whether they are a long tenured worker, a frequent claimant, or an occasional claimant.

The EI Regulations defines a long tenured worker as a claimant who:

1. was paid less than 36 weeks of regular benefits in the 260 weeks before the beginning of their benefit period and who;
2. according to their income tax returns for which notices of assessment have been sent by the Canada Revenue Agency, paid at least 30% of the maximum annual employee's premium in at least 7 of the 10 years before the beginning of their benefit period or, if their income tax return for the year before the beginning of their benefit period has not yet been filed or a notice of assessment for that year has not yet been sent by the Agency, in at least 7 of the 10 years before that year. ^{Footnote 25}

A frequent claimant is defined as a claimant who was paid more than 60 weeks of regular benefits in at least three benefit periods in the 260 weeks before the beginning of their benefit period. ^{Footnote 26}

An occasional claimant is one who is neither a long tenured worker nor a frequent claimant. ^{Footnote 27}

For the purpose of determining whether a claimant is a long tenured worker or a frequent claimant, the following are considered as weeks of benefits "paid":

• any week in which at least $1.00 in regular benefits was paid or payable to the claimant ^{Footnote 28} ;
• a week in which benefits were used to either recover an overpayment or a monetary penalty, or to reimburse a provincial or municipal government or any other prescribed authority for an advance, assistance or welfare payment; or,
• a week in which the claimant served a week of definite disqualification ^{Footnote 29} .

The following would not be included for this purpose:

• a week in which a week of the waiting period was served;
• a week of work sharing benefits;
• a week of benefits paid to a claimant for attending a course or program of instruction or training to which the Commission, or an authority that the Commission designates, has referred the claimant;
• a week of special benefits (sickness, maternity, parental, compassionate care or Parents of Critically Ill Children benefits);
• a week in which the conditions of entitlement were not met so no benefits were paid; or,
• a week where an allocation of earnings prevented any payment of benefits.

Once an initial claim is established, the claimant will be identified as a long tenured worker, a frequent claimant or an occasional claimant, based on the above criteria. Once the category of claimant is identified, it will apply for the entire ensuing benefit period. For example, if a claimant establishes an initial claim, and based on the above criteria is identified as a frequent claimant, then returns to work and subsequently renews their claim, that claimant would still be considered a frequent claimant, for the duration of that benefit period.

[ April 2014 ]

9.4.2.2 Elapsed weeks

Although all claimants are expected to seek and accept suitable employment while claiming regular benefits, the extent to which a certain type of work and offered earnings are suitable will vary according to their claimant category, and the number of weeks that have elapsed in their benefit period. The weeks considered when determining the number of weeks elapsed include:

• a week in which a week of the waiting period was served;
• any week in which at least $1.00 in regular benefits was paid or payable to the claimant, including any week in which benefits were used to either recover an overpayment or monetary penalty, or to reimburse a provincial or municipal government or any other prescribed authority, for an advance, assistance or welfare payment; or,
• a week in which the claimant served a week of definite disqualification ^{Footnote 30} .

The following would not be included for this purpose:

• a week of special benefits (sickness, maternity, parental, compassionate care or Parents of Critically Ill Children benefits);
• a week of work sharing benefits;
• a week of benefits paid to a claimant for attending a course or program of instruction or training to which the Commission, or an authority that the Commission designates, has referred the claimant;
• a week in which the conditions of entitlement were not met so no benefits were paid; or,
• a week where an allocation of earnings prevented any payment of benefits.

[ April 2014 ]

9.4.2.3 Type of work

As previously indicated, the extent to which a certain type of work is suitable will vary according to the category of the claimant and the number of weeks that have elapsed in their benefit period.

For varying periods of time both long tenured workers and occasional claimants are allowed to restrict their willingness to accept work and their job search to the "same" occupation worked in the past. The claimant's same occupation is defined as any occupation in which the claimant worked during their qualifying period ^{Footnote 31} . Consequently, a claimant may have worked in one or more "same" occupations during the qualifying period.

All three categories of claimants will, at different points in their benefit periods, have to expand their willingness to accept work and their job search to "similar" occupations. A similar occupation is defined as any occupation in which the claimant is qualified to work and which entails duties that are comparable to the ones that the claimant had during their qualifying period ^{Footnote 32} . There may be more than one occupation that is similar to those worked in the qualifying period. It is not the occupation the claimant has worked in previously or the one the claimant wishes to work in at present that are necessarily relevant in this determination. Rather, given the claimant's particular individual circumstances, what must be determined are the occupations in which the claimant is qualified to work and which entail duties that are comparable to the ones the claimant had during the qualifying period. Additional fact-finding may have to be undertaken in this regard, including information regarding the claimant's education, aptitudes, skills, physical abilities and previous work experience.

In addition, both frequent and occasional claimants will, at different points in their benefit periods, have to expand their willingness to accept work, and their job search to any occupation in which they are qualified to work, including occupations in which the claimant could become qualified to work through on-the-job training ^{Footnote 33} . It is not the occupation the claimant has worked in previously or the one the claimant wishes to work in at present that are necessarily relevant in this determination. Nor is it essential that the claimant be qualified to work in a particular occupation when first hired. Rather, given the claimant's particular individual circumstances, what must be determined are the occupations in which the claimant is qualified to work, including occupations in which the claimant could become qualified to work through on-the-job training. Additional fact-finding may have to be undertaken in this regard including information regarding the claimant's education, aptitudes, skills, physical abilities, previous work experience and their willingness to undertake on-the-job training.

Long-tenured Worker: During the first 18 weeks of their benefit period, long tenured workers can restrict their willingness to seek and accept work to the same occupation(s) worked in their qualifying period. After the eighteenth week of the benefit period, they must be willing to seek and accept work in similar occupations ^{Footnote 34} .

Occasional Claimant: During the first six weeks of their benefit period occasional claimants may restrict their willingness to seek and accept work to the same occupation in which they worked in their qualifying period. From the seventh to the eighteenth week of the benefit period, they must be willing to seek and accept work in similar occupations. After the eighteenth week of the benefit period an occasional claimant must be willing to seek and accept work in any occupation(s) in which they are qualified to work ^{Footnote 35} .

Frequent Claimant: During the first six weeks of their benefit period a frequent claimant must be willing to seek and accept work in similar occupations. After the sixth week of the benefit period, they must be willing to seek and accept work in any occupation in which they are qualified to work ^{Footnote 36} .

[ April 2014 ]