Digest of Benefit Entitlement Principles  Chapter 10 - Section 12

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10.12.0 Absence from home

Absence from home may suggest that a claimant is not available for work. This presumption could be stronger or weaker depending on the reason for the absence. Here are the situations which usually come into play in this subject area:

  1. visiting family or friends,
  2. on vacation,
  3. looking for work,
  4. sickness or death in the family,
  5. staying at the cottage,
  6. hospitalization,
  7. imprisonment, or
  8. out of Canada.

It should not be assumed that claimants must obtain permission from the Commission before leaving their home area, or that absence from home makes one automatically unavailable for work. On the other hand, simply advising the office before leaving or the fact that no job opportunity arises during their absence, does not automatically mean that claimants will be considered available.

10.12.1 Visiting family or friends

To go away for a few days to visit close friends and family is a normal occurrence in our society. As far as the legislation is concerned, weekend trips are not an issue. What the legislation does stipulate, however, is that a claimant be available for work from Monday to Friday Footnote 1 .

Availability will not be questioned for a short occasional absence of two days or less if it occurs during a period in which the claimant is, from every other indication, available for work Footnote 2 .

In cases where an effort has been made to inform the Commission before leaving the area, or where arrangements have been made be reached without delay, in order to return within 48 hours in the event of an employment opportunity, even longer absence of up to a week may be accepted.

For longer absences, however, the claimant's availability in this passive sense cannot be regarded as adequate. The reason for this is that in the active sense, claimants are expected to be in search of employment and are not exempt from this obligation while away from home Footnote 3 .

10.12.2 On vacation

Leaving home to take a vacation is in direct opposition to the concept of availability. Regardless of the area visited or the duration of the trip, a claimant on vacation fails to prove availability for work Footnote 4 .

Even claimants who before leaving, have made arrangements to be reached immediately if a job opportunity arises, or those who have advised the office before leaving, will be considered not available. The purpose of the legislation is to provide benefits to qualified claimants who devote their time to looking for work.

The above considerations also apply when the claimant is just using lay-off time to take a vacation.

10.12.3 Looking for work

An absence from home for the sole purpose of exploring job opportunities in another area is totally consistent with the concept of being actively available for work. Unless the reason for the absence is questionable, claimants in this situation will be considered available for work.

To prove availability, especially in cases where the absence is for a long period, claimants may be requested to specify the efforts made, list the employers contacted and provide other relevant information. Vague or unsatisfactory answers could result in the denial of benefits Footnote 5 .

10.12.4 Sickness or death in family

There is no exemption from the requirement of proving availability when a claimant goes away to be near a sick relative. Nevertheless, availability may be accepted as proven where such an absence is for one week or less. Thus, if it is clear that the claimant has made arrangements to be reached without delay in the event of an employment opportunity, and is ready to return home within the next 24 hours or at the most, 48 hours, availability will be considered proven. Beyond that seven day period the claimant may become subject to a disentitlement as of the eighth day of the absence Footnote 6 . Additional information needs to be obtained in order to assess the claimant’s continued availability for work, such as, how long the claimant will continue to be away from home, the reason they are away from home, the distance from where they are to home, whether they are making reasonable efforts to find a job either in their usual area or within their temporary area, whether they are able and willing to go home to attend an interview or start work on short notice, or their ability to return home within 24 to 48 hours. Claimants may also be asked to provide details of their job search efforts since leaving their home area.

In the case of death in the family the claimant may be considered to be available during an absence of up to seven days, if arrangements have been made to be reached without delay. When the absence extends beyond the seven days, the claimant may become subject to a disentitlement as of the eighth day of the absence, but each situation must be assessed individually. Of course, availability is not proven if, in such a situation, the claimant is unable or unwilling to return home upon being made aware of an employment opportunity. These principles also apply to a claimant who has to leave work for this reason Footnote 7 .

10.12.5 Staying at the Cottage

Staying at the cottage for part of a period on claim does not necessarily amount to taking a vacation. It is a common practice even, for those with jobs, to commute from the cottage. However, this does not mean that a claimant is exempted from searching for employment while away at the cottage. A presumption of non-availability arises when daily commuting time from the cottage to the area in which the claimant is expected to look for work, is more than the legislative requirement for suitable employment Footnote 8 , the claimant stays at the cottage almost all the time, they cannot be contacted by telephone Footnote 9 , they have made no efforts to obtain employment Footnote 10 ,or they are is unwilling to accept work until they return from the cottage Footnote 11 .

All of these situations should be examined in light of the principles of “Immediate Availability” as described in section Footnote 12 of this Digest.

10.12.6 Hospitalization

It is clear that claimants in hospital fail to prove that they are available for work. Any statement to the effect that they are still able to work is irrelevant. The only question to consider is their possible entitlement to sickness benefits.

A presumption of non-availability and incapacity does not necessarily exist with respect to the few days immediately preceding one's admission to hospital. It is not uncommon for people to be able to work up to the day of admission. Claimants who do not seek work while awaiting a call from the hospital for confirmation of a date for admission fail to prove that they are available for work.

A claimant could be said to be available for work on the day of discharge from hospital if availability was shown for at least one half of the day. This would also apply to the day of admission if the claimant were able to work up to that point in time.

10.12.7 Imprisonment

Whether or not they claim to be available for work, claimants are not entitled to receive benefits for any period during which they are an “inmate of a prison or similar institution Footnote 13 ”.

Disentitlements for being an “inmate of a prison or similar institution” include pre-trial Footnote 14 and post-trial custody as well as the following situations: incarceration by court order in order to undergo treatment Footnote 15 , authorized absence from a detention centre or prison in order to either undergo treatment at another facility Footnote 16 or to undergo an evaluation at another facility Footnote 17 .

If during a period of time when a claimant had been an inmate, benefits were obtained fraudulently by a third party without the claimant’s knowledge or consent, responsibility for repayment of the appropriate overpayment would rest with the third party Footnote 18 .

Claimants can avoid a disentitlement for being an inmate of a prison or similar institution if they can establish that they have “been granted parole, day parole, temporary absence or a certificate of availability for the purpose of seeking and accepting employment in the community” Footnote 19 . Permission to be absent must be actually granted. The fact that it could have been granted if work had been available is not sufficient. In addition, even if a temporary absence had been granted the claimant must then be physically absent from the institution for the disentitlement to be avoided Footnote 20 .

Like any other person claiming regular benefits, claimants on parole or on an approved temporary absence must also prove that they are available for work Footnote 21 , including being generally available for all hours of employment that are available in the labour market Footnote 22 . Hours of work outside of day time hours that cannot be legally accepted by those on day parole are not considered as suitable.

Neither a disentitlement for being an inmate nor one for non-availability for work is appropriate if, on the working day of arrest, or on the working day of release from custody, the claimant is available for at least half of that day.

10.12.8 Out of Canada

Absence from Canada automatically disentitles a claimant from benefits Footnote 23 unless the absence and length of that absence is otherwise prescribed by Regulation Footnote 24 as follows:

  • to undergo medical treatment not readily available in the claimant's area of residence
  • for up to seven days, to attend a funeral of a member of the immediate family or of a close relative;
  • to accompany, for up to seven days, a member of the immediate family who is ill to a medical facility, provided the treatment is not readily available in the family member's area of residence;
  • for up to seven days, to visit a seriously ill or injured immediate family member;
  • for up to seven days, to attend a bona fide job interview;
  • for up to fourteen days, to conduct a bona fide job search, or
  • to attend training approved by an authority of the Commission.

In most cases, a claimant cannot combine any of the exceptions, to receive benefits for two or more periods of seven or 14 days consecutively. However, in cases where a claimant is out of the country to visit a relative who is seriously ill or injured, and during their absence from Canada, that family member passes away, the claimant may benefit from the exceptions under EIR 55(1)(b) and 55(1)(d), and potentially be entitled to benefits for up to 14 days while out of the country Footnote 25 . Calculation of the 7 or 14 days period

In situations where the claimant meets one of the relief conditions under Regulation 55(1), calculation of the seven or 14 days for which benefits will be allowed, begins the day after the day the claimant leaves Canada, without counting the day of departure, regardless of the time of departure. However, a claimant is disentitled for being outside Canada on the day of their return to Canada, regardless of the time of arrival. The claimant would not be entitled to benefits for that day, if none of the relief conditions are met.

Beyond the prescribed time frame a disentitlement is applicable from the eighth or fifteenth day of the absence from Canada, as appropriate Footnote 26 . As indicated in Digest 10.12.8, payment for up to 14 days out of country may be allowed if the claimant is visiting a relative who is seriously ill or injured, and during their absence from Canada, that family member passes away Footnote 27 . Regular benefits and the availability provision

The above mentioned regulatory exceptions Footnote 28 apply only when the claimant, claiming regular benefits, is able to prove availability during the absence, similar to that required of a claimant away from home for a short duration within Canada Footnote 29 . Failing that, the claimant becomes subject to a disentitlement for both non-availability and for being outside Canada. The same principles apply to a claimant who takes a leave of absence from employment to go outside Canada. Special benefits

A claimant is not disentitled from receiving maternity, parental, compassionate care or benefits for parents of critically ill children, for the sole reason that the claimant is outside Canada, unless their SIN has expired Footnote 30 .

Reasons of a compassionate nature provide grounds upon which a claimant could be outside Canada, and still be entitled to benefits. Therefore, the Commission, where possible, should inform the claimant of the possibility of entitlement to Compassionate Care benefits. As an example, a claimant can be entitled to Compassionate Care benefits followed by a maximum of seven days of regular benefits should the family member Footnote 31 pass away while the claimant is still out of the country.

While certain reasons for absence within EIR 55(1) cannot be combined, they can nevertheless be considered independently from those under EIR 55(4) which deals with Compassionate Care benefits as well as benefits for other reasons. Job search

A job interview or job search is bona fide Footnote 32 when the claimant can demonstrate a reasonable expectation of obtaining authorization to work in the host country. Training and self-employment benefit

A claimant attending a course or program of instruction outside of Canada, to which they were referred by a designated authority of the Commission, is not disentitled for the sole reason that they are outside Canada. These claimants are considered to be unemployed, capable of and available for work during any absence, whether they are in Canada or not, provided the referral remains in effect Footnote 33 . Referrals outside of Canada are limited to the work experience portion of the course or program of instruction, and the acquisition of new technology or training, not available locally, more conveniently, or more cost-effectively in Canada. Should a referral be made which is an exception to this policy, it (the referral) will be accepted.

As well, a claimant outside Canada, with the approval of the Commission, in the course of the claimant's employment under the Self-Employment Agreement (SEA) employment benefit Footnote 34 or under a similar benefit provided by a provincial government or other organization Footnote 35 , is not disentitled from receiving benefits for the sole reason of being outside Canada. These claimants are also considered to be unemployed, capable of and available for work during any absence, whether they are in Canada or not, provided the referral remains in effect.

[ January 2014 ]

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