Employment Insurance & CERB

During COVID-19

Understanding Employment Insurance (EI) During COVID-19

Are you unable to work, for one reason or another, due to the COVID-19 outbreak?  Will you be eligible for employment insurance benefits that are made available through the Federal Government?  Whitten & Lublin Employment & Labour Lawyers have developed this practical guide to assist employees in understanding their Employment Insurance rights. 

The Employment Insurance (“EI”) program is designed to provide temporary income support to eligible unemployed workers in certain circumstances. There are 3 different types of EI benefits that are the most relevant as a result of the COVID-19 pandemic:

1. EI regular benefits;

2. EI sickness benefits; and

3. Canada Emergency Response Benefit.

These benefits are discussed in detail below.

1. EI Regular Benefits

EI regular benefits pre-exist COVID-19. They are available if you lose your job through no fault of your own. These circumstances include:

– if you are unable to work because your employer has a shortage of work.

– if you were laid-off.

– if you were terminated from your job and it was not for misconduct (i.e. restructuring, lack of work, shutdowns, poor fit and poor performance).

To receive regular benefits, you must be available for and able to work, but unable to find a job.

Do you qualify? 

You should be entitled to EI regular benefits if you:

– were employed in insurable employment (a portion of your pay was withheld and provided to the government).

– lost your job through no fault of you own.

– have been without work and without pay for at least seven consecutive days in the last 52 weeks.

– have worked for the required number of insurable employment hours in the last 52 weeks or since the start of your last EI claim, whichever is shorter.

– are ready, willing and capable of working each day.

– are actively looking for work.

The number of hours of insurable employment you need to qualify for EI depends on the unemployment rate in your area, but is from 420 and 700 hours in the last 52 week period. 

Unfortunately, you must have lost your job to become entitled to EI regular benefits. You cannot apply if your hours were reduced, even if they were reduced substantially. The requirement is that you must be without work and without pay for at least seven consecutive days.

You should apply for EI regular benefits as soon as you stop working. You can apply for benefits even if you have not yet received your Record of Employment (ROE).  If you delay filing your claim for benefits for more than four weeks after your last day of work, you may lose benefits. 

You can complete your application for regular benefits online through the Service Canada website. 

Interaction between EI regular benefits and CERB

If the reason you lost your job is related to COVID-19, and you became eligible for EI regular benefits on March 15, 2020 or later, please note your EI claim will be automatically processed the CERB.

If you have recently exhausted regular benefits and are unable to find work for reasons related to COVID-19, you are eligible for the CERB.

How much can you receive?

For most people, the basic rate for calculating EI regular benefits is 55% of the average insurable weekly earnings, up to a maximum of $573 per week.  The number of weeks for which you can receive EI regular benefits depends on the unemployment rate where you live, but is anywhere from 14 weeks to a maximum of 45 weeks.

If your weekly earnings vary or your income is variable, Service Canada uses a specific number of your highest paid weeks of employment, or your “best weeks.” The number of best weeks they use is based on the unemployment rate where the employee lives, but is anywhere between 14 and 22 weeks.

What if you are still earning some income while receiving EI regular benefits?

If you work while receiving regular EI regular benefits, you will be able to keep 50 cents of your EI benefits for every dollar you earn, up to 90 percent of the weekly insurable earnings used to calculate your EI benefit amount.  Once you earn more than 90 percent, the amount you earn is deducted dollar for dollar from your EI benefits.

2. EI Sickness Benefits

EI sickness benefits can provide you with up to 15 weeks of income replacement and are available to eligible employees that cannot work for “medical reasons.”  Medical reasons include:

– illness

– injury

– quarantine

– any medical condition that prevents you from working.

Before COVID-19, Service Canada required a medical certificate to prove a sickness in order qualify for EI sickness benefits.  However, this requirement is now waived and you will not require medical certificates for COVID-19 EI sickness benefits.  Therefore, whether you are placed in quarantine by order or whether you are unable to work because your employer has asked you to self-isolate, you will not have to produce a medical certificate to prove you are eligible for EI sickness benefits.

Please note that if you became eligible for EI sickness benefits on March 15, 2020 or later, your EI claim will be automatically processed through the CERB.

Do you qualify?

To qualify for EI sickness benefits, you need to demonstrate that:

–  You are unable to work for medical reasons (but you do not need to produce a medical certificate to demonstrate this)

–  You accumulated 600 insured hours of work in the 52 weeks before the start of your claim or since the start of your last claim, whichever is shorter

How much could you receive?

You can receive up to 55% of your insurable earnings (capped at $573 per week) for up to 15 weeks.

If your weekly earnings vary or your income is variable, Service Canada uses a specific number of your highest paid weeks of employment, or your “best weeks.” The number of best weeks they use is based on the unemployment rate where you live, but is anywhere between 14 and 22 weeks.

3. Canada Emergency Response Benefit

The Government had previously announced they would be introducing an Emergency Care Benefit and an Emergency Support Benefit. These two benefits have now been merged into a new Canada Emergency Response Benefit (“CERB”).

Do you qualify?

The CERB will be available to workers:

–  Residing in Canada, who are at least 15 years old;

–  Who have stopped working because of reasons related to COVID-19 or are eligible for EI regular or sickness benefits or have exhausted their EI regular benefits between December 29, 2019 and October 3, 2020;

–  Who had employment and/or self-employment income of at least $5000 in 2019 or in the 12 months prior to the date of their application; and

–  Who have not quit their job voluntarily.

Claimants cannot have earned more than $1000 in employment and/or self-employment income for 14 or more consecutive days within the four-week benefit period of the first claim. When submitting subsequent claims, they cannot have earned more than $1000 in employment and/or self-employment income for the entire four-week benefit period of the new claim.

What does it mean to “stop work as a result of COVID-19 related reasons”?

Examples of having to stop work for COVID-19 related reasons are:

1.  You have been let go from your job or your hours have been reduced to zero;

2.  You are in quarantine or sick due to COVID-19;

3.  You are away from work to take care of others because they are in quarantine, sick due to COVID-19; and/or

4.  You are away from work to take care of children or other dependents whose care facilities is closed due to COVID-19.

You cannot have quit your job voluntarily.

When can I apply for the CERB?

You can apply for the CERB starting April 6, 2020. The CRA has set up specific days for people to apply, and is asking people to use the following guidelines:

employment insurance during COVID-19

You have to continue applying for each subsequent period.

EI or CERB?

You cannot receive both EI benefits and the CERB for the same period.

If you were receiving EI regular or sickness benefits before March 15, 2020, you will continue to receive these benefits until the end of your benefit period. Similarly, if you became eligible for EI regular or sickness benefits before March 15, 2020, your claim will be processed as an EI claim. In both of these scenarios, you will not receive the CERB unless your benefits end before October 3, 2020, after which you may apply for the CERB if you meet the eligibility requirements and are still unable to return to work due to COVID-19.

If you became eligible for EI regular or sickness benefits on March 15, 2020 or later, your claim will be automatically processed through the CERB.

If you have already applied for EI and you became eligible for EI regular or sickness benefits on March 15, 2020 or later, your claim will be automatically processed through the CERB. You can still access EI regular and sickness benefits if you are still unemployed after the 16-week period covered by the CERB.

How much can you receive?

The CERB will provide $2,000 a month for up to 16 weeks.

employment insurance during COVID-19

Work-Sharing Program

Work-Sharing is an EI program that helps employers and employees avoid layoffs when there is a temporary decrease in business activity beyond the control of the employer. The program provides EI benefits to eligible employees who agree to reduce their normal working hours and share the available work while the employer recovers. The employer and the employees (and their union, if applicable) must agree to participate in a Work-Sharing agreement, and must apply together.

Do you qualify?

To be eligible for Work-Sharing, you must:

– be a year-round, permanent, full-time or part-time employee needed to carry out the day-to-day functions of the business (“core staff”).

– be eligible to receive EI benefits.

– agree to reduce your normal working hours by the same percentage, and to share the available work.

You are not eligible for Work-Sharing if you are:

– a seasonal employee and/or a student hired for the summer or a co-op term.

– an employee hired on a casual or on-call basis, or through a temporary help agency.

– an employee who is needed to help generate work and/or who is essential to the recovery of the business (e.g. senior management, business development employees).

– an employee who holds more than 40% of the voting shares in the business.

Your employer is not eligible for Work-Sharing if:

– It is experiencing a reduction in business due to:

1. a labour dispute;

2. a seasonal shortage of work; or

3. a pre-existing and/or recurring production slowdown.

– The decrease in business activity is due to a recent increase in the size of the workforce.

Your employer is responsible for applying for Work-Sharing. It must provide an Application for a Work-Sharing Agreement, along with a recovery plan and its sales figures for the last 24 months.

If an agreement is in place, employees will be expected to apply for EI benefits via Appli-Web and must use a specific reference code provided to them.

How much could you receive?

The benefits payable are based on your normal average weekly earnings, as calculated at the start of the agreement.  If you work irregular hours, the average weekly wage is calculated by averaging the hours worked per week over the two years before the application. Earnings received in any week by an employee are not deducted from the Work-Sharing benefits, unless the employee has earnings from sources other than the Work-Sharing employment, in which case those earnings are deducted according a predetermined formula.

Family Supplement

You may be eligible for an increase to the amount of EI benefits you can receive if:

– your net family income does not exceed $25,921 per year.

– you have children and your spouse receives the Canada Child Benefit.

The family supplement rate is based on your net family income up to a maximum of $25,921 per year and the number of children in your family and their ages.

The family supplement may increase your EI benefit rate up to 80% of your average insurable earnings.

As of April 29, 2020, the family supplement has been extended to CERB claimants as well.

Quick Questions and Answers

1. Which EI benefit should I apply to if I am sick with COVID-19?

You should apply to the CERB.

2. Which EI benefits should I apply to if I’m in self-isolation because I recently travelled?

You should apply to the CERB.

3. Which EI benefits should I apply to if I recently came into contact with someone who has been diagnosed with COVID-19, and I therefore cannot work as I need to self-isolate?

You should apply to the CERB.

4. Which EI benefits should I apply to if my child’s school has closed and I have to stay home to watch him/her?

You should apply to the CERB.

5. Which EI benefits should I apply to if my hours have been cut by 50%?

Unfortunately, you do not meet the criteria for EI regular benefits. Unless you meet the eligibility criteria for EI sickness benefits, you are not eligible for EI sickness benefits either. You may be entitled to the CERB if you are earning less than $1,000 in a period of four weeks. You may also consider speaking to your employer about a potential Work-Share arrangement.

6. Which EI benefits should I apply to if I was temporarily laid off?

You should apply to the CERB.

7. What should I do if I choose not to work, because I am concerned about my safety at the workplace?

You have a right to refuse unsafe work if it is likely to endanger your health.  You should tell your employer you are refusing unsafe work. Please note that if you voluntarily quit your job, you are not entitled to either EI or CERB.

8. I work in Ontario and my company was required to shut down due to the mandatory order. Will I receive benefits covered under Employment Insurance during COVID-19?

You have stopped working for a reason related to COVID-19 so you are entitled to the CERB.

How Whitten & Lublin Employment & Labour Lawyers can help you?

We have the expertise to guide employees through the practical impacts that COVID-19 may have on your job.  For example, we can:

– identify your legal rights in the workplace, including health and safety, constructive dismissal, wrongful dismissal, human rights or discrimination;

– guide you through the statutory benefits that may be available;

– assist with employment insurance questions;

– assist with communicating with your employer to ensure your important rights are protected; and

– assist with any other form of workplace-based dispute. 

Useful Links

Government of Canada information on EI sickness benefits: https://www.canada.ca/en/services/benefits/ei/ei-sickness.html

Government of Canada information on EI regular benefits: https://www.canada.ca/en/services/benefits/ei/ei-regular-benefit.html

Government of Canada information on the new Emergency Care Benefit and other economic relief measures: https://www.canada.ca/en/department-finance/news/2020/03/canadas-covid-19-economic-response-plan-support-for-canadians-and-businesses.html

Government of Canada information on Work-Sharing: https://www.canada.ca/en/employment-social-development/services/work-sharing/guide-employee.html

** Disclaimer. The information presented here is a guide only and is not intended to form specific legal advice or establish a solicitor-client relationship. The information is also subject to change. The date of publication is April 30, 2020.