Digest of Benefit Entitlement Principles Chapter 14 - Section 6

14.6.0 Interruption and allocation of earnings

Teachers have an interruption of earnings and a separation from employment at the beginning of the non-teaching period, provided the stoppage of work will be at least 7 days (EIR 14).

An interruption of earnings occurs when a teacher completely ceases to work while on approved leave of absence without pay, but still remains under contract with the employer. The wording of the section in the teacher’s employment contract, dealing with the leave of absence, will govern the situation.

14.6.1 Allocation of earnings during non-teaching period

Historically, the Commission’s position, which is based on the Supreme Court Decision S.C.C. 15540, (FCA A-267-77) has been that teachers are not paid for periods of leave within their contract. As a result, the Commission did not allocate earnings during any non-teaching days.

However, in a later decision, the Federal Court ruled that the allocation of a teacher's salary must be done in accordance with existing regulations (FCA A-113-98, CUB 40009). This would be the case when the contract specifies that, during the period of employment, a teacher is paid for days other than teaching days, such as statutory holidays, non-working and vacation days (currently EIR 36(5)). In that decision, it was considered that the entire teaching period was being remunerated, thus allowing for the allocation of earnings for non-teaching days, pursuant to the regulation.

This means that earnings of a teacher can be allocated, not only to teaching days, but also to any other non-teaching days, as specified in the contract. A strict application of the Federal Court decision would have prevented the Commission from paying maternity, parental, compassionate care or family caregiver benefits during non-teaching periods, to teachers in similar situations. To respect the intent of the legislation and to strike a balance between the Supreme Court decision and the subsequent Federal Court decision, earnings are not allocated during the summer non-teaching period. As such regular, maternity, parental, compassionate care or family caregiver benefits can be paid during that period, regardless of whether the claimant accumulates insurable hours and/or earnings under their teaching contract for the summer non-teaching period.

If it is stipulated in the teaching contract, that a teacher is paid for statutory holidays and/or other days, in addition to teaching days, the Commission’s policy is to allocate earnings to all teaching and non-teaching days that fall in the teaching period (generally September to June) including the Christmas and spring break non-teaching periods. This means that generally, no earnings will be allocated in the summer non-teaching period (usually July and August).

If the contract specifies that the teacher is paid for the entire teaching period, as was the case in the Federal Court decision mentioned above, allocation will be done proportionately over the entire teaching period, pursuant to EIR 36(5).

If, however, the contract specifies that only certain non-teaching days are remunerated (for example only statutory holidays) monies paid for these non-teaching days will be allocated under the appropriate subsection, that is, statutory holidays would be allocated under EIR 36(13) and vacation pay under EIR 36(8). No monies would be allocated outside the teaching period.

Example: If a teacher files a claim during the Christmas break and the contract specifies that the teacher is paid for the statutory holidays as well as vacation days while the school is closed, thereby providing remuneration for the entire teaching period, the allocation of the total remuneration is made under EIR 36(5).

If a contract specifies that a teacher is only paid for statutory holidays, and the teacher files a claim during the Christmas break, statutory holiday pay is allocated to Christmas day, Boxing day and New Year’s day, pursuant to EIR 36(13), as not all of the non-working days in the teaching period are remunerated.

As no earnings are allocated outside the period of teaching, (usually July and August) there would be no earnings allocated to the summer period and an interruption of earnings would occur. This policy maintains the current approach for the payment of maternity, parental, compassionate care and family caregiver benefits for teachers during the non-teaching period.

It is important to note that EIR 33 must still be applied to all traditional non-teaching periods, to determine entitlement to benefits for a teacher who remains under a teaching contract.

The intent is to allow for the payment of maternity, parental, compassionate care or family caregiver benefits during the non-teaching period. Therefore, the Commission’s policy is to pay these types of special benefits during the summer non-teaching period, even if the client is accumulating insurable hours during that period.

14.6.2 Insurable hours during non-teaching period

Generally, a claimant who accumulates hours of insurable employment while receiving EI benefits would have the earnings from those hours deducted from their benefits. However, as previously mentioned, in the case of a teacher who is paid for days other than teaching days, they may accumulate insurable hours during the summer non-teaching period, while no allocation of earnings is made for that period. This will allow EI benefits to be paid. To avoid situations where a teacher is paid benefits for the summer non-teaching period and, on a subsequent claim, receives credit for the insurable hours accumulated during that same period, the following applies:

• if a teacher files a subsequent claim after having received benefits in the non-teaching period, the record of employment will be reviewed to determine the number of insured hours and amount of earnings that fell in the non-teaching period
• a determination will be made as to whether the teacher could qualify to establish the subsequent claim without the insured hours from the non-teaching period
• if a teacher requests or requires credit for the insurable hours during the summer non-teaching period, an allocation of earnings will be done for the non-teaching period, pursuant to EIR 36(5) (FCA A-113-98, CUB 40009)
• if a teacher does not require all the insured hours during the non-teaching period, the allocation of earnings would only cover the hours needed for the subsequent claim. For example, if a teacher required 600 hours to qualify for benefits and only 560 hours fell in the teaching period only 40 hours from the non-teaching period would be used, and insured earnings would be allocated to the period covered by those hours. The balance of the hours from the non-teaching period would not be used in the calculation of the claim unless the teacher requested credit for all of those insured hours. In that case, an allocation of earnings would be done for all the earnings in the non-teaching period

[ August 2021 ]