Archived - Digest of Benefit Entitlement Principles Chapter 10 - Section 11

10.11.0 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. The following are situations which frequently 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.

10.11.1 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.

• Employment Insurance Act 18(1)(a);
• Employment Insurance Regulations 32;
• CUB 18093;
• CUB 77075.

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 (Digest 10.4.1.1 “Immediate availability”).

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 an 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 making reasonable efforts to search for employment and are not exempt from this obligation while away from home.

• CUB 17009;
• CUB 24997;
• CUB 64171;
• CUB 79737A.

10.11.2 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.

• CUB 58712;
• CUB 79700;
• CUB 79190.

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 concept also applies when the claimant is using a period of lay-off from their employment, to take a vacation.

10.11.3 Looking for work

An absence from home for the sole purpose of exploring job opportunities in another area is 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 provide a list of the job search efforts made, including names of employers contacted, and other relevant information. Vague or unsatisfactory answers could result in the denial of benefits.

• Employment Insurance Act 50(8);
• CUB 57904A;
• CUB 60861A;
• CUB 67490.

10.11.4 Sickness or death in family

There is no complete exemption from the requirement of proving availability when a claimant leaves their home area 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. If the absence is for more than a week, the claimant may become subject to a disentitlement as of the eighth day of the absence if they are not fully available and making reasonable efforts to find work. 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.

• CUB 72341;
• CUB 74009;
• CUB 79834.

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 within a reasonable period of time, upon being made aware of an employment opportunity. These principles also apply to a claimant who has to leave work for this reason.

• CUB 56445A;
• CUB 79218.

10.11.5 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, for those with jobs, to commute from the cottage to their place of employment. However, this does not mean that a claimant is exempted from searching for employment while away at the cottage. A presumption of non-availability may arise when: the daily commuting time for suitable employment, from the cottage to the area in which the claimant is expected to look for work, is more than the claimant’s normal commute to work. from their residential community (Digest 10.10.0 “Daily commuting time”); the claimant stays at the cottage almost all the time; they cannot be contacted by telephone; they have made no efforts to obtain employment; or they are unwilling to accept work until they return from the cottage.

• CUB 67726;
• CUB 19601.

All of these situations should be examined in light of the principles of “Immediate Availability” as described in Digest 10.4.1.1, “Immediate availability”.

10.11.6 Hospitalization

It is clear that claimants in hospital cannot prove 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 an individual’s admission to hospital. It is not uncommon for people to be available for and 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 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.

10.11.7 Incarceration

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”.

• Employment Insurance Act 37(a)

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

• CUB 57688;
• CUB 59851;
• CUB 50845;
• CUB 58160A;
• CUB 58051;
• CUB 60503;
• CUB 69572.

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.

• Lylander, A-231-08

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”. 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.

• Employment Insurance Regulations 54;
• Tanner, A-869-81.

Like any other person claiming regular benefits, claimants on parole or on an approved temporary absence must also prove they are available for work (Digest 10.1.2 “Availability defined”), including being generally available for all hours of employment that are available in the labour market. Hours of work outside of day time hours that cannot be legally accepted by those on day parole are not considered as suitable (Digest 10.8 “Hours of work; family obligations and religious beliefs”).

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.

10.11.8 Out of Canada

Absence from Canada automatically disentitles a claimant from benefits unless the absence and length of that absence is otherwise prescribed by Regulation 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.

• Employment Insurance Act 37(b);
• Employment Insurance Regulations 55(1).

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, and potentially be entitled to benefits for up to 14 days while out of the country.

• Employment Insurance Regulations 55(1)(b);
• Employment Insurance Regulations 55(1)(d);
• Walsh A-304-07;
• CUB 68174.