During the last twenty-four months in Ontario we have had a federal election, provincial election and municipal elections. As a result, leaders with new mandates have been, and will be, introducing various pieces of legislation which they hope will benefit our communities.
One change which became affective early this year which many people are not aware of was the Compassionate Care Benefit. This is a federally regulated program which results from amendments to the Employment Insurance Act (“EI Act”) and its Regulations. The Compassionate Care Leave Program allows for up to six weeks of employment insurance benefits for some employees to provide care and support for terminally ill family members. This will provide financial benefits to people who have serious ill family members, many of whom are in hospital. The benefits start after a two week unpaid waiting period.
What is Covered
Under the EI Regulations, “care and support” has been defined to mean:
- providing psychological or emotional support;
- arranging for care by a third party; or
- directly providing or participating in the care.
- Employees of federally regulated employers can receive Compassionate Care Benefits to care for one of the following family members:
- the employee’s child or the child of the employee’s spouse or common-law partner;
- the employee’s wife/husband or common-law partner;
- the employee’s mother or father;
- the employee’s father’s wife or mother’s husband; or
- the common-law partner of the employee’s father or mother.
Under the EI Act, “common-law partner” means a person who has been living in a conjugal relationship with that person for at least a year.
An employee must meet two requirements in order to receive compassionate care benefits.
First, the employee must have at least 600 hours of insurable employment within the qualifying period. The qualifying period is the shorter of (a) the 52-week period immediately before the start date of the employee’s claim; or (b) the period since the start of a previous EI claim, if that claim started during the 52 week period.
Second, in order to be eligible, the employee must obtain medical proof of the family members’ condition. The employee must provide a medical certificate confirming that the ill family member needs care or support and is at significant risk of death within twenty-six (26) weeks. A special medical certificate called a “medical certificate for employment insurance compassionate care benefits” must be completed and signed by a medical doctor or other medical practitioner authorized to treat the gravely ill family member. Another medical practitioner, such as a nurse practitioner, is acceptable if the gravely ill family member is: outside Canada; in a location where treatment by a medical doctor is limited or not accessible; and a medical doctor has authorized the other medical practitioner to treat the ill family member.
The maximum of six (6) weeks of compassionate care benefits is payable within the twenty six (26) week period that starts with the earliest of:
(a) The week the doctor signs the medical certificate; or(b) The week the doctor examines the gravely, ill family member; or(c) The week the family member became gravely ill, if the doctor can determine that date (for example, the date of the test results).
The benefit ends on the earliest of the following:
- after the six (6) weeks of compassionate care benefits have been paid;
- when the gravely ill family member dies or no longer requires care or support;
- or the twenty-six (26) week benefit period has expired.
Who Can Apply for Compassionate Leave
With the exception of federally regulated employers such as banks and airlines, the right to a leave of absence (as opposed to EI benefits) is a matter within provincial responsibility. With respect to federally regulated employers, along with the amendments to the EI Act there were also amendments to the Canada Labour Code, which came into effect earlier this year. Accordingly, federally regulated employees are obligated to allow their employees to take eight (8) weeks off work to provide care and support to a family member who has a significant risk of death within the next twenty-six (26) weeks.
Currently only Quebec, Manitoba, New Brunswick, Nova Scotia, PEI, Yukon and Nunavut have enacted legislation that requires employers to provide their employees with unpaid time off for the duration of the EI benefit period.
In Ontario, the government recently tabled amendments to the Employment Standards Act, 2000 (the “ESA, 2000”) that provide up to eight weeks of unpaid time off for those taking care of ill family members. These amendments came into effect on June 29, 2004. Essentially, these amendments are identical to the federal legislation.
It remains to be seen whether the creation of this EI benefit will spur the remaining provinces to create a right to a leave of absence to care for a family member, or whether there will continue to be a “gap” in some provinces, whereby employees may be entitled to EI benefits, but without corresponding legislation providing a right to a leave of absence.
Employees of banks, cable companies, railways, airlines and other federally regulated companies can take advantage of the Compassionate Care Leave program now. In addition, those employees of other organizations which work in provinces or territories which have enacted enabling legislation, also have those benefits.
Physicians will be called upon to provide a “medical certificate for employment insurance Compassionate Care Benefits” which may be given to the member of family of a seriously ill person who the physician is treating.
Hospitals may as a result of the new Compassionate Care Benefits find more family members available to assist with caring for seriously ill patients.