EI double-dipping or true intent of benefits?

By Jeffrey R. Smith (jeffrey.r.smith@thomsonreuters.com)

In Canada, we pride ourselves on giving new parents a generous amount of time off work with some income through maternity and parental benefits through the employment insurance (EI) program.

Added up, benefits total nearly a full year during which one of the parents can stay home and look after the baby while receiving a portion of their normal salary. Some employers even top up the amount so the parent on leave receives her full salary for a period of time. But what happens when the parental benefits run out and the employee is unable to return to work?

This happened to Natalya Rougas, a 37-year-old Toronto woman. Last week, the Toronto  Star reported Rougas was expected to return to work in January 2010 after giving birth to her son in January 2009. However, shortly before her return-to-work date, she was diagnosed with breast cancer and began chemotherapy treatment.

Normally, an employee who has to undergo treatment for a medical condition that prevents her from being able to work would be eligible for EI sickness benefits, up to a maximum of 15 weeks. However, Rougas’ claim for sickness benefits was rejected because, according to her letter from Human Resources and Skills Development Canada, she would not have otherwise been working had she not fallen ill. However, the reason she wasn’t working was because she was still on parental leave.

Is this a misinterpretation of EI legislation, or just an unfair provision? If a mother gets sick and needs to take medical leave before she goes on maternity leave, she is eligible to have the 15 weeks of sickness benefits and then her full maternity and parental leave benefits. Does it make sense to deny sickness benefits when the reason she isn’t working is an already-approved parental leave?

Should she be considered employed if she has a planned return-to-work date in the near future, as Rougas did? Or should EI claims evaluators stick to a strict interpretation to help save money for a system that is becoming taxed to the limit and will result in increased EI premiums in the next few years?

There seems to be some inconsistency with the intended purpose of EI benefits and the way they are being administered in this case, leaving a new mother unemployed and with no income while facing rising medical expenses. Should already existing benefits prevent someone from getting further benefits added on when the new claim — in this case sickness benefits —  is different from the existing benefits?

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more information, visit www.employmentlawtoday.com.

4 Responses to “EI double-dipping or true intent of benefits?”

  1. 1 Vinjay Sakeethra May 25, 2010 at 10:54 pm

    Mr. Smith,

    I don’t believe the tone of this blog is appropriate for an HR website. As employers, publications like Canadian HR Reporter should be advocating for LOWER EI premiums. Yet all the questions you pose lead to HIGHER ones???

    While everyone can sympathize with the plight of this poor woman, it is not up to employers to foot the bill. You say Canadians are rightly proud of offering benefits to mothers, and I agree. But who pays for this? You do. I do. Everyone who works does. And the cost to employers is truly staggering. Advocating for even more benefits to what is already truly a VERY generous system is off base, and it hurts your credibility.

    • 2 Jeffrey R. Smith July 15, 2011 at 1:06 pm

      Actually, our job is to report HR-related news, not to advocate a particular side. This is a worthwhile question to raise about the balance between the monetary cost and the societal cost of these types of benefits. The purpose of this blog is to generate discussion of the issues, not advocate for one side or another. The piece does raise both sides of the question.

      This is a blog designed for discussion of employment issues, not to toe a particular party line. This is a forum for opinions; a contrary opinion does not denote a lack of credibility.

  2. 3 Richard July 15, 2011 at 3:12 am

    I think your understanding of the law is skewed. The provision to allow 15 weeks of sickness on top of the 50 weeks is a special exemption added to EI Maternity/Parental claims given the frequent complications that occurr during pregnancy. It’s not the norm. To qualify for this special exemption, you have to meet the criteria of how sickness benefits are administered — one of which is you would have otherwise been working (or available for work) were you not sick. That’s the case for women who have pregnancy complications: they had not yet arrived at the time for maternity benefits, but they were sick. The problem without the exemption was that any EI benefit period could only have 50 weeks paid (plus a 2 week unpaid waiting period). The result would be that the sickness time would be deducted from the Maternity/Parental time for which parents are supposed to nurture newborns. Hence, the special exemption. That was the will of parliament.

    While this case is sad (I’ve had cancer in my family), it doesn’t meet the requirements for the exemption. Her illness was not related to her pregnancy, nor would she be working had she not been ill. She had received the maximum maternity/parental benefits. We can’t change the law based on emotion to meet special cases. We have to apply it objectively. For instance, if another person received 50 weeks of Regular (not maternity/parental) EI benefits and became sick at the end, they have no way out because they’ve already reached the maximum. They can’t take advantage of the special provision that’s there to assist with the complications due to pregnancy because that provision is only for one special case. This would mean that the law isn’t really being applied evenly because in this case she has the unfortunate circumstance of Cancer, but it’s not anything to do with preventing pregancy complications from detracting from her care and nurturing time with her child. What we have to realize is that there are other options for patients like this. We all pay CPP, and when we are so disabled by something long lasting like Cancer, it’s quite likely that CPP disability benefits are available.

    There are various support measures in place. We must apply the correct ones as they were intended and not skew the law with emotion.

    The other question is whether we accept the laws as is. If we don’t, then we can advocate change. Until then, though, the law has to be interpreted, and not invented. While I believe in progressive interpretation, I don’t support changing the law away from its intended purpose. The legislative process would have many considerations such as equity and efficiency. The recent ruling, in my opinion, didn’t have the scope to consider the possible impacts.

  3. 4 Jeffrey R. Smith July 15, 2011 at 3:41 pm

    UPDATE: Rougas has been awarded the 15 weeks’ sick leave benefits by Justice R.J. Marin, serving as an EI umpire. Marin found the EI Commission should have interpreted the law more liberally and the 2002 amendments opened the benefits to women who became seriously ill at the end of their maternity/parental leave.

    Marin cited comments by John McCallum (secretary of state at the time) and Anne Cools (a senator at the time) to the House of Commons that the law would enable women to receive the benefits before, during and AFTER parental leave. This, said Marin, was “the will of elected officials.”

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