Archived - Digest of Benefit Entitlement Principles Chapter 10 - Section 11
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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:
- visiting family or friends,
- on vacation,
- looking for work,
- sickness or death in the family,
- staying at the cottage,
- imprisonment, or
- 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.
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.
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.
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.
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.
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.
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.
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”.
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.
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”.
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.
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.
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.
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
- 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, 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.
10.11.8.1 Calculation of the 7 or 14 days period
In situations where the claimant meets one of the relief conditions under Regulation, 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. The calculation ends, the day after the claimant returned to Canada, regardless of the time of their arrival.
Beyond the prescribed time frame a disentitlement is applicable from the eighth or fifteenth day of the absence from Canada, as appropriate. As indicated in Digest 10.11.8, payment for up to 14 days while out of the 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.
10.11.8.2 Regular benefits and the availability provision
The above mentioned regulatory exceptions (Digest 10.11.8 “Out of Canada”) apply only when the claimant, claiming regular benefits, is able to prove availability during their absence, similar to that required of a claimant away from home for a short duration within Canada (Digest 10.11.1, “Visiting family or friends” to 10.11.6, “Hospitalization”). 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.
10.11.8.3 Special benefits
A claimant is not disentitled from receiving maternity, parental, compassionate care or family caregiver benefits, for the sole reason they are outside Canada, unless their Social Insurance Number has expired.
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. For example, a claimant may be entitled to Compassionate Care benefits followed by a maximum of seven days of regular benefits should the family member pass away while the claimant is still out of the country.
While certain reasons for absence cannot be combined, they can nevertheless be considered independently from those which deals with Compassionate Care benefits as well as benefits for other reasons.
10.11.8.4 Job search
A job interview or job search is bona fide when the claimant can demonstrate a reasonable expectation of obtaining authorization to work in the host country.
10.11.8.5 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. Referrals to training outside of Canada are generally 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 or under a similar benefit provided by a provincial government or other organization, 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.
- Employment Insurance Act 25(1)(b)(i);
- Employment Insurance Regulations 50;
- Employment Insurance Regulations 55(11);
- Employment Insurance Act 63.
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