Digest of Benefit Entitlement Principles Chapter 10 - Section 10

10.10.0 Health and physical capabilities

Individuals claiming regular benefits and seeking to re-enter the labour force as soon as possible, must be able to perform the types of work under various conditions of employment expected by employers. Claimants who are incapable of working at any type of work, cannot prove they are entitled to regular benefits.

10.10.1 Authority

The legislation stipulates that a claimant is not entitled to be paid regular benefits for any working day in a benefit period, for which the claimant fails to prove that, on that day, the claimant was capable of working (EIA 18(1)(a)). However, the legislation does not expect claimants to seek and accept employment that is not suitable (EIA 6(4); EIR 9.002(1)). One of the legislative requirements defining suitable employment is that a claimant’s health and physical capabilities allow them to commute to the place of work and to perform the work (EIR 9.002(1)(a)).

10.10.2 A fixed criterion

There is no reference in the legislation to health and physical capabilities in comparison with a claimant’s previous pattern of work in the qualifying period. In addition, the criterion in the legislation regarding health and physical capabilities of work applies to the entire benefit period, and does not vary based on the number of weeks a claimant has been in receipt of benefits.

Consequently, notwithstanding any pattern of work in the qualifying period, claimants are expected to be capable of work that is available in the labour market, from the beginning of their claim (EIR 9.002(1)).

10.10.3 Application

Claimants cannot be considered capable of work if they say they are physically unable to work, or if they are in fact unable to work. In this situation, the question to decide is whether the claimant may be entitlement to sickness benefits (CUB 70774, CUB 73094). This subject is covered in chapter 11 of this Digest.

Claimants are considered physically unable to work when their inability is such that it rules out almost any possibility of obtaining employment in an occupation that is considered to be otherwise suitable, pursuant to the legislation (EIR 40(4)). Every situation must be examined based on the claimant’s individual circumstances.

If the claimant’s health and physical condition prevents the possibility of obtaining employment in the same type of occupation in which they worked in their qualifying period, and the claimant is unwilling to accept other types of work, the claimant would be considered unable to work, and the question to consider would be whether or not they may be entitled to sickness benefits. However, if a claimant in this situation is willing to accept other types of work, assuming there are reasonable opportunities for such employment in the labour market, the claimant would be considered available for and capable of work, and would be entitled to regular benefits.

A worker who is away from work temporarily due to illness or injury, may still be capable of performing less strenuous tasks. However, such a job attached claimant would nevertheless be considered physically unable to work if there is little or no chance of finding suitable work within their restrictions during their recovery and until they resume their employment.

Claimants who have received the maximum number of weeks that can be paid as sickness benefits, cannot subsequently claim regular benefits by saying that they are now capable of and available for work, unless their physical condition has clearly improved. It is not possible that one's physical condition can support a finding of incapability as well as a finding of capability (FCA A-179-13).

It is also possible for claimants to prove incapacity with respect to a limited number of working days in a week, and be capable of and available for work on the other working days. Since incapacity as well as availability for work must be given consideration on a day-to-day basis, this situation may be acceptable (EIA 18). Incapacity for less than the 5 working days in a particular week would not affect the claimant’s ability to receive 15 weeks of sickness benefits, if they meet all other entitlement conditions to receive sickness.

A minor attached claimant (less than 600 hours of insurable employment in their qualifying period) may be able to establish a benefit period for regular benefits. However, if the reason they have stopped working is due to illness, they would not be entitled to sickness benefits for as long as they are incapable of working for that reason (EIA 21(1); CUB 76344).

A minor attached claimant who is not able to collect sickness benefits, but who is capable of working less than 5 days a week, may be entitled to regular benefits. The claimant would, however, be subject to a disentitlement for each working day they are incapable of working.

A distinction must be made between a worker with a permanent disability and one who has had to leave work as a result of a recent disability. Where a person has worked in insurable employment while suffering from a permanent partial disability, the person would be insured against the risk of unemployment in that context.

At no point during the benefit period should such a disability be considered in assessing prospects of employment. Claimants in this situation are only required to be available within the full extent of their capability. Their reduced physical or other condition will be considered in assessing what constitutes reasonable efforts on their part to find work. Restrictions imposed on their availability, which do not arise out of their disability, may lead to disentitlement.

10.10.4 Pregnancy and childbirth

Pregnancy and childbirth do not by themselves disentitle a claimant from benefits. The following does not apply where a claim is established for maternity rather than regular benefits.

In regard to claimants who are pregnant, the most common situations fall into three scenarios: voluntary unemployment as a result of the pregnancy; pregnancies with complications; and pregnancies with no complications. Naturally, a claimant does not demonstrate that she is available for work if she states that she is unable to work or if she is actually unable to work because of the pregnancy.

Leaving employment voluntarily because of pregnancy strongly suggests that a claimant is unavailable, because her departure indicates that either her ability to work is reduced, or she simply prefers not to work. The same is true of a claimant who asks for a leave of absence rather than continuing to work, or neglects to avail herself of an opportunity of suitable employment, during pregnancy. The onus is on the claimant to disprove this presumption by showing that her decision to leave her job or to refuse other work does not affect her ability or willingness to work, and that she is still actively seeking work that she could reasonably hope to obtain.

In cases of pregnancies with complications, the first question to determine is whether the claimant is incapable of work within the meaning of that word, as found in the legislation, and whether she is entitled to sickness benefits. If not entitled, an assessment must be made of the extent to which her condition reduces prospects of employment.

Unless there are reasonable employment opportunities within her reduced capability and she demonstrates her willingness to work, the claimant will not likely be able to prove that she is capable of and available for work.

While there may be no complications, a claimant may suffer from temporary illnesses at the outset of a pregnancy, which could, for short periods, prevent her from performing her usual duties. Reasonable alternatives to quitting employment in such cases, would be to request modified duties or a leave of absence until she is able to return to work. Voluntarily leaving employment without first considering these alternatives could impact the claimant’s entitlement to regular benefits, should she request them.

Claimants who lose their jobs while pregnant, but do not do so voluntarily, will be considered available for work, provided they can demonstrate that they are willing to work, at least on a temporary basis until their expected due date. Pregnancy alone, is not considered an obstacle to a claimant’s availability or capability of obtaining employment.

Where a claimant requests regular benefits following maternity and/or parental benefits, the reason she is not returning to her previous employment must be reviewed. Failure to make the required effort to return to her usual job, or to make the necessary child care arrangements so that she can actively seek work, is evidence that the claimant may not be willing or available to return to the labour force (CUB 47727). In situations where the claimant has attempted to make child care arrangements but has been unable to do so due to the unusual hours of employment offered, she may be considered available, provided she has made adequate arrangements for normal working hours.

[September 2019]

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