Vol. 150, No. 26 — December 28, 2016

Registration

SOR/2016-314 December 16, 2016

EMPLOYMENT INSURANCE ACT

Regulations Amending the Employment Insurance Regulations

P.C. 2016-1151 December 16, 2016

The Canada Employment Insurance Commission, pursuant to subsection 24(1), section 54 (see footnote a) and subsection 69(3) (see footnote b) of the Employment Insurance Act (see footnote c), makes the annexed Regulations Amending the Employment Insurance Regulations.

His Excellency the Governor General in Council, on the recommendation of the Minister of Employment and Social Development, pursuant to subsection 24(1), section 54 (see footnote d) and subsection 69(3) (see footnote e) of the Employment Insurance Act (see footnote f), approves the annexed Regulations Amending the Employment Insurance Regulations, made by the Canada Employment Insurance Commission.

Regulations Amending the Employment Insurance Regulations

1 (1) Section 37 of the Employment Insurance Regulations (see footnote 1) is amended by adding the following after subsection (2):

(3) Despite paragraph (2)(d), the application of a supplemental unemployment benefit plan may result in a combined weekly payment to an employee for the week following the waiting period that exceeds 95% of the employee’s normal weekly earnings from that employment if the plan is in place before the day on which section 208 of the Budget Implementation Act, 2016, No. 1 comes into force.

(2) Subsection 37(3) of the Regulations is repealed.

2 (1) Subsection 38(2) of the Regulations is replaced by the following:

(1.1) If a plan is in place before the day on which section 208 of the Budget Implementation Act, 2016, No. 1 comes into force, the following portion of any payments that are paid to a claimant as an insured person for the week following the waiting period is excluded as earnings for the purposes of section 35, namely the portion that, when combined with the portion of the claimant’s weekly benefit rate from that employment, does not exceed the sum of the portion of their weekly benefit rate and their normal weekly earnings from that employment.

(2) However, the portion of any payments referred to in subsection (1) or (1.1) that are paid to a claimant in respect of a week during which benefits are payable to them by reason of illness, injury or quarantine is considered earnings for the purposes of section 35.

(2) Subsections 38(1.1) and (2) of the Regulations are replaced by the following:

(2) However, the portion of any payments referred to in subsection (1) that are paid to a claimant in respect of a week during which benefits are payable to them by reason of illness, injury or quarantine is considered earnings for the purposes of section 35.

3 Subsection 39(2) of the Regulations is replaced by the following:

(2) The maximum amount to be deducted under subsection (1) in respect of a claimant’s earnings in their waiting period is an amount equal to their rate of weekly benefits.

4 Section 46 of the Regulations is replaced by the following:

46 If a claimant becomes employed in work-sharing employment and the waiting period has not been served as required by section 13 of the Act or earnings have not been deducted as required by subsection 19(1) of the Act, the serving of the period or the deduction of the earnings shall be deferred until that employment has terminated.

5 (1) Paragraph 63(b) of the Regulations is replaced by the following:

• (b) if an insured person is required to serve an elimination period during which no benefit is payable under the plan, that period
  • (i) does not exceed seven consecutive days beginning with the first day of the period of incapacity due to illness or injury, or
  • (ii) does not exceed 14 consecutive days beginning with the first day of the period of incapacity due to illness or injury if, before the day on which section 208 of the Budget Implementation Act, 2016, No. 1 comes into force, the plan provides for an elimination period that exceeds seven consecutive days and the employer benefits under subsection 62(1) from a reduction of the employer’s premium rate in respect of that plan;

(2) Paragraph 63(b) of the Regulations is replaced by the following:

• (b) if an insured person is required to serve an elimination period during which no benefit is payable under the plan, that period does not exceed seven consecutive days beginning with the first day of the period of incapacity due to illness or injury;

Coming into Force

6 (1) These Regulations, except for subsections 1(2), 2(2) and 5(2), come into force on the day on which section 208 of the Budget Implementation Act, 2016, No. 1 comes into force, even if they are made after that day.

(2) Subsections 1(2), 2(2) and 5(2) come into force on January 3, 2021.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Executive summary

Background

In Budget 2016, the Government of Canada announced several initiatives to improve employment insurance (EI), including reducing the EI waiting period from two weeks to one week.

The EI waiting period is defined in the Employment Insurance Act (EI Act) and is referenced throughout the EI Act and the Employment Insurance Regulations (EI Regulations). Pursuant to the EI Act, the EI waiting period is a period of time that must be served before a claimant is entitled to be paid EI benefits. The waiting period has been a key feature of the EI program since its inception and serves as a deductible similar to private insurance. It has been set at two weeks since 1971 and applies to regular, fishing, special and self-employed benefits.

The Budget Implementation Act, 2016, No. 1 contains amendments to the EI Act that reduce the EI waiting period from two weeks to one week. The Government of Canada announced in Budget 2016 that the reduction of the waiting period would take effect on January 1, 2017.

Reducing the waiting period will ease financial pressure at the front end of a claim when EI-eligible individuals become unemployed or leave work temporarily due to health or family pressures and could help claimants defray expenses as they adjust to the income shock in these circumstances. For example, for an eligible claimant who is laid off and subsequently finds work after 12 weeks, up to 11 weeks of EI benefits will be payable whereas only up to 10 weeks are currently payable. This results in an estimated fiscal cost of $650 million per year.

Employer benefit packages play an important role in supporting workers, which is recognized under the EI program.

Premium Reduction Program

The PRP provides a reduction of the employer’s premium rate when an employer provides a plan in respect of illness or injury to their employees that meets the standards established in the EI Regulations. A requirement of the EI Regulations is that the premium reduction be shared between employers and employees in portions of 7/12 and 5/12, respectively. The premium reduction recognizes the savings to the EI Operating Account resulting from workers utilizing employer benefits before accessing EI sickness benefits. To qualify under the PRP, a plan must meet the requirement under paragraph 63(b) of the EI Regulations, which states that where plans have an elimination period (analogous to the EI waiting period), it shall not exceed 14 consecutive days, starting with the first day of the period of incapacity. This is in line with the current EI waiting period of two weeks. To align this requirement with the change to a one-week waiting period under the EI Act, amendments to the EI Regulations are required to reduce the maximum elimination period of an employer’s plan from the current 14 consecutive days to 7 consecutive days.

Employer supplementary benefit plans

(a) Supplementary unemployment benefit plans

Pursuant to section 37 of the EI Regulations, supplementary unemployment benefit (SUB) plans are provided by employers to provide supplementary income to workers in addition to EI payments during periods of unemployment due to a temporary stoppage of work, training (including for apprentices), illness, injury or quarantine. Payments received by an EI claimant under a SUB plan are not considered earnings and, therefore, do not result in a reduction of EI benefits. To qualify as a SUB plan, paragraph 37(2)(d) of the EI Regulations states that the plan must require that the combination of the weekly payments received from the plan and the portion of the claimant’s EI weekly benefit rate from that employment do not exceed 95% of the employee’s normal weekly earnings from that employment.

(b) Maternity leave, leave for the care of a child and compassionate care leave plans

Under section 38 of the EI Regulations, a second category of employer supplementary benefit plans is composed of plans provided by employers to cover periods of leave because of pregnancy, for the care of a newborn or newly adopted child or for the care or support of a gravely ill family member or critically ill child. Pursuant to subsection 38(1) of the EI Regulations, payments from these plans are treated in a manner similar to SUB plans, namely that they are not considered as earnings and, therefore, do not reduce EI benefits.

Subsection 38(1) of the EI Regulations states that the payments received by claimants are excluded as earnings as long as, when combined with the portion of the claimant’s EI weekly benefit rate from employment, they do not exceed the claimant’s normal weekly earnings from that employment.

Issues

Premium Reduction Program

According to Statistics Canada, there were approximately 1.17 million employer businesses in Canada in December 2015. The 2015 actuarial report estimated that 30 800 employers had plans that qualified for participation under the PRP. The vast majority of employers are not affected by the amendments to the EI Regulations, which reduce the maximum elimination period from 14 consecutive days to 7 consecutive days, since they already provide for an elimination period of 7 days or less. However, administrative data indicate that approximately 4 700 employers with plans under the PRP have an elimination period of more than 7 days. There is, therefore, a group of employers who may not meet the new standard when it comes into effect. This group represents approximately 15% of employers participating in the PRP and 0.4% of all employers.

As some PRP plans take the EI two-week waiting period into account in their design and some are embedded in collective agreements or agreements with third-party insurance providers, it may not be easy for these employers to make adjustments to their plans in the short to medium term.

Employer supplementary benefit plans

Under the current EI Regulations, the change to a one-week waiting period could result, for some EI claimants, in a combined payment of employer and EI benefits that exceeds the maximum allowable amount in the week following the one-week waiting period, either in regard to employer payments under a SUB (section 37 of the EI Regulations) or under the aforementioned second category of employer supplementary benefit plans (section 38 of the EI Regulations). In other cases, while claimants are still entitled to the same maximum number of weeks of EI benefit, they could potentially receive one less week of employer benefits. The impact of the change in the EI waiting period on claimants covered by an employer supplementary benefit plan depends on the specific nature of the existing employer plans, which are often also outlined in collective agreements, as well as the actions of employers in response to the change in the waiting period, both in the immediate term and over the longer term.

Objectives

The objectives of the amendments to the EI Regulations are to

• align the references to the waiting period in the EI Regulations with the one-week waiting period in the EI Act;
• align the elimination period requirement to qualify for the PRP with a one-week EI waiting period;
• provide employers who have an existing PRP plan a transitional period of four years within which to adjust their plan to meet the new PRP requirement, while continuing to receive a premium reduction; and
• provide employers who have an existing employer supplementary benefit plan a transitional period of four years within which to adjust their plan while minimizing the impact on their employees.

Description

Consequential amendments to sections 39 and 46 are necessary to align references to the waiting period in the EI Regulations with a one-week waiting period in the EI Act.

Premium Reduction Program

The PRP standards in the EI Regulations are amended to state that the maximum elimination period in an employer's plan cannot exceed 7 consecutive days, instead of the current 14 consecutive days.

A transitional provision is provided in the EI Regulations to allow existing PRP plans that may not meet the new requirement regarding the elimination period to continue to qualify as a plan under the PRP for a period of four years. This transitional provision provides employers who are affected by the change with a reasonable period within which to update their plans to meet the new standard, should they wish to do so, while continuing to receive a premium reduction during the transitional period. This transitional provision will be repealed on January 3, 2021.

Employer supplementary benefit plans

In the case of SUB plans, a transitional provision is added to section 37 of the EI Regulations that allows the application of plans that were in place prior to the coming into force of the proposed amendments to result in a combined payment of employer and EI benefits that exceeds 95% of the employee’s normal weekly earnings for the week following the one-week waiting period. This mitigates the impact of the reduction of the waiting period on claimants’ EI benefits and allows these plans to continue to qualify as SUBs for a period of time while providing employers time to adjust to the reality of a one-week waiting period. This transitional provision will be repealed on January 3, 2021.

In the case of the second category of employer supplementary benefit plans, a transitional provision is added to section 38 of the EI Regulations to increase, for plans that were in place prior to the coming into force of the amendments, the maximum amount of combined employer payments and EI benefits that claimants may receive in the week following the one-week waiting period such that EI benefits are not reduced if the combined payments exceed the current allowable limit. Thus, it mitigates the potential impact of the reduction of the EI waiting period on employers and their employees, and provides employers with a period of time to adjust their plans, should they choose to do so. This transitional provision will be repealed on January 3, 2021.

Regulatory and non-regulatory options considered

Premium Reduction Program

The PRP is a voluntary program with standards for participation in the program that are set out in the EI Regulations. As a result, any changes to these standards must be made through regulatory amendments. The premium reduction is estimated to be approximately $900 million per year. Of this amount, it is estimated that affected employers currently receive approximately 11%, or $99 million, in premium reductions.

A non-regulatory alternative that would maintain the status quo in the EI regulations was considered. However, it was determined that this option was not viable since it would result in a misalignment between a legislated one-week waiting period and the current PRP requirement that the elimination period not exceed 14 consecutive days, which is designed to be aligned with a two-week waiting period. If this standard were not adjusted to align with a one-week EI waiting period, employers with plans that exceed a seven-day elimination period would continue to receive a premium reduction, while their employees, if EI-eligible, could claim a week of EI sickness benefits prior to employer benefits becoming payable, on an ongoing basis. As a result, expected savings to the EI Operating Account would not be fully realized.

Given the amendment to shorten the elimination period standard, a key consideration was the minimization of potential adverse impacts. If the elimination period standard were amended but a transitional measure were not provided, an estimated 4 700 employers who would not meet the new standard as of January 1, 2017, would no longer qualify to participate in the PRP and would cease to benefit from a premium reduction. This could represent a significant cost, estimated at approximately $99 million per year in the form of a foregone premium reduction.

In addition, misalignment between the EI waiting period and the elimination period standard for qualifying PRP plans would result in administrative inefficiency and complexity that would impact affected employers and their employees as well as the Government of Canada. Employees claiming one week of EI benefits prior to employer benefits becoming payable would need to apply to the EI program. Employers would need to provide a Record of Employment (ROE) to support a claim for one week of EI benefits and the Government of Canada would need to process these additional claims, none of which would occur if the EI waiting period and elimination period were aligned. In the event that the employee remained unable to work upon exhaustion of employer benefits, he or she could potentially renew his or her EI claim. The resulting process in which claimants alternate between EI and employer benefits is likely to be complex and confusing and to present communications challenges for all parties concerned. From an administrative perspective, the remedy is to amend the EI Regulations to align the elimination period with the one-week waiting period such that employer benefits are used and exhausted first, before EI benefits become payable. This is also in keeping with the overall policy intent of the PRP.

Employer supplementary benefit plans

A non-regulatory approach that would maintain the status quo was considered. However, in the absence of regulatory amendments that provide transitional provisions to mitigate the impact of the legislative change to the waiting period, some employer plans could continue to provide payments that, when combined with EI benefits, would exceed the allowable limits in the week following the waiting period, resulting in EI benefits being reduced for the employee. In addition, in the case of SUBs, the transitional provision allows these plans to meet the regulatory standards, on an exception basis, and therefore continue to qualify as a SUB during the transitional period.

Benefits and costs

Premium Reduction Program

Amending the requirement for the elimination period to align with a one-week waiting period ensures that the PRP standards are consistent with the Government of Canada’s intent that employer benefits be paid before EI benefits become payable. For employers with existing plans that do not meet the new standard once it comes into force, a four-year transitional period allows their plans to continue to qualify under the PRP during that period of time, as an exception. This allows employers to continue to receive a premium reduction while they make adjustments to their plans, should they choose to do so.

Based on administrative data, it is estimated that roughly 4 700 employers that would otherwise no longer be eligible for the PRP will continue to receive a premium reduction for the first four years following implementation of the amendments. Following the fourth year, it is assumed that these employers will align their plans with the elimination period standard (maximum seven consecutive days). The cost for these affected employers is estimated to be $4.6 million on an annualized average basis over a 10-year period. Employers will be reimbursed this total through the PRP and will be required to share 5/12 or $1.9 million on an annualized basis with employees. After accounting for the initial cost savings and subsequent reimbursement of employers, there will not be any incremental impacts on the EI Operating Account. The overall net benefit would be zero.

Cost-benefit statement

		2016–2017 (see footnote g)	2017–2018	2025–2026	Total (PV) (see footnote h)	Annualized Average
A. Quantified impacts (in millions of dollars, 2015 constant dollars)
Benefits	Affected employers	0.0	0.0	6.2	18.7	2.7
Costs	Affected employers	0.0	0.0	10.8	32.1	4.6
Net benefits	Affected employers (see footnote i)	0.0	0.0	–4.5	–13.4	–1.9
Benefits	Employees	0.0	0.0	4.5	13.4	1.9
Costs	Employees	0.0	0.0	0	0	0
Net benefits	Employees (see footnote j)	0.0	0.0	4.5	13.4	1.9
Benefits	EI Operating Account	0.0	0.0	10.8	32.1	4.6
Costs	EI Operating Account	0.0	0.0	10.8	32.1	4.6
Net benefits	EI Operating Account	0.0	0.0	0.0	0.0	0.0
Overall net benefits		0.0	0.0	0.0	0.0	0.0
B. Quantified impacts in non-$
Positive impacts	Affected employers	Up to an estimated 4 700 (rounded) affected employers continue to receive a premium reduction due to transitional measures to mitigate the change in the elimination period.
Negative impacts	Affected employers	During the transitional period, an estimated 16 400 additional ROEs are issued per year.
Positive impacts	Employees	An estimated 16 400 employees receive an additional week of benefits in Year 1 and continue to receive a premium reduction.
Positive impacts	Government of Canada	As employers comply with the new requirement over the course of the transitional period, the number of EI sickness claims for processing is reduced and recognized through premium reductions.
Negative impacts	Government of Canada	Up to 16 400 incremental EI sickness claims to process with one week of benefits in the transitional period. Administratively, up to an estimated 4 700 employers with revised plans to be validated as meeting the new standard by the end of the transitional period.
C. Qualitative impacts
Affected employers: Employers are provided a four-year transitional period during which they continue to qualify for a premium reduction while they make adjustments to plans, should they choose to do so. PRP participants receive an incremental premium reduction due to an additional week of benefits paid that the Government of Canada would otherwise provide through EI sickness benefits.
Employees: Employees covered under plans provided by affected employers that do not use all of their employer benefit entitlement receive one additional week of benefits, either through the EI program in the transitional period or from the employer once compliant. During the transitional period, employees of affected employers continue to receive their portion (5/12) of the premium reduction. Subsequently, if their employer complies with the amendments to the Regulations, they will continue to receive a premium reduction.
Government of Canada: Promotes the retention of employer participation in the PRP and reduces administrative inefficiency.

Notes

Figures for affected employers, and by extension their employees, are based on a sensitivity analysis in which all would choose to comply. For the purposes of this analysis, the assumed date of compliance is January 2, 2021.

The net cost to the EI Operating Account reflects a maximum based on affected employers waiting four years to make adjustments to their plans, and assuming that employees access sickness benefits for a week before drawing from the employer’s plan due to the reduction of the waiting period.

The PRP is a voluntary program and, as such, neither obligates employers to participate nor compels them to adjust their plans in response to any amendments to standards that may affect qualifications to participate. In regard to the latter, it is recognized that the consequence for those who choose not to comply would be that they would no longer qualify for a premium reduction. Ongoing changes to standards in the EI Regulations that complement the legislative change to reduce the waiting period are restricted to the PRP standards and have been kept to a minimum to contain potential impacts on employers and their employees. That is, the only ongoing regulatory amendment specifically related to the PRP is the reduction of the maximum elimination period from 14 consecutive days to 7 consecutive days, deemed necessary to align with the legislative change that reduces the EI waiting period from two weeks to one.

Employer supplementary benefit plans

There will be no additional costs to the EI Operating Account as a result of the transitional provisions in the EI Regulations regarding employer supplementary benefit plans. These provisions mitigate the risk that employees will have reduced EI benefits.

Although there are data limitations, there is some information regarding employers and employees who could benefit from the four-year transitional provisions, designed to prevent EI benefits from being reduced.

Approximately 1.9 million employees are covered by employers who provide SUB plans (section 37 of the EI Regulations). Of these, approximately 1.7 million employees (88%) have a plan that currently pays during week two of the waiting period and an estimated 204 000 employees have a SUB plan that is also linked to a collective agreement. These employees/employers are most likely to benefit from a transition period to make adjustments to align with a one-week waiting period.

Regarding the second category of employer supplementary benefit plans (section 38, EI Regulations), employers with these plans are not required to submit their plans to the Canada Employment Insurance Commission (CEIC). However, it is estimated that 20% of EI maternity benefit claimants do have employers that provide a supplementary benefit plan. As there were approximately 169 000 claims for EI maternity benefits in 2014–2015, an estimated 33 800 employees, and their employers, may benefit from the transitional period in a given year.

While the maximum weeks of EI benefit entitlements remain unchanged, it is recognized that some employees are at risk of receiving one less week of employer benefits as a result of the amendment to the EI Act that reduces the waiting period. The transitional provisions targeting affected employers, and their employees, who provide employer supplementary benefit plans is not expected to mitigate this risk.

“One-for-One” Rule

Employers that choose to update their plans are required to resubmit their adjusted plan to remain in the PRP. However, the “One-for-One” Rule does not apply, as the PRP is a voluntary program.

Small business lens

Given that the majority of employers participating in the PRP are small businesses (80%), it is expected that the majority of employers impacted by this regulatory change (4 700) are small businesses (3 760). Therefore, the unique needs of small employers have been taken into account in the design of the flexible approach, i.e. that includes a transitional period during which employers are able to continue to benefit from an EI premium reduction.

The recommended option is to provide a transitional period of four years for employers to adjust to the regulatory change. This has been done in order to provide sufficient time for all affected employers to be able to assess whether or not they would proceed with amendments to their illness or injury plans and to then take the necessary steps to do so, while continuing to benefit from EI premium reductions during the transitional period. Targeted proactive communication activities will bring attention to the upcoming changes and encourage employers, particularly those participating in the PRP (or those with employer supplementary benefit plans), to visit a web page that will help them determine if they are impacted by the reduction of the EI waiting period.

Allowing for this transition period will have no impact on Canadians’ health, security, safety or environment. Under the initial option where the flexibility provided through transitional provisions is not available upon the coming into force of the change, impacted businesses would no longer receive premium reductions until such time as they updated their illness or injury plans, which could represent a significant cost for affected employers, and their employees, in the form of a foregone premium reduction.

Outreach activities with representatives of the small business community, in addition to large employer representatives, were held to help assess the potential impact as a result of the reduction of the waiting period. Discussions focused largely on employer plans that interact with the EI program, including the PRP and employer supplementary benefit plans. Early indications are that employers would require a period of time to more fully assess the potential impacts, and that the possibility of a transitional period to mitigate impacts and strategies for communicating the changes to employers would be well received. In addition, the Government of Canada was advised that most small employers would not be impacted by changes affecting employer supplementary benefit plans, as these plans were typically provided by larger employers with a unionized force. (see footnote 2)

Regulatory Flexibility Analysis Statement

An amendment to the EI Regulations is required to align the elimination period requirement to qualify for the PRP with a one-week EI waiting period. In terms of flexibility, the alternatives are a flexible option (i.e. a four-year transitional period) versus an initial option (no transitional period).

In the absence of the flexible approach, employers who are not in compliance with the amended PRP standard when it becomes effective on January 1, 2017, would cease to qualify for a premium reduction at that time. The cost of non-compliance could be significant, as this group could forego an ongoing premium reduction estimated to be in the tens of millions of dollars for employers and their employees.

Under an initial option where no flexibility is offered, the costs for small businesses are estimated to be up to approximately $1,000 per small business and $3.8 million overall, on an annualized average basis. These costs would be due to the fact that affected employers would most likely not be in compliance with the amended standard when it comes into force, effective January 1, 2017. Therefore, they would no longer qualify to participate in the PRP and would forego their premium reduction. Under the flexible option, which is the recommended option, impacted small businesses would only carry costs of up to $60 per small business and $200,000 overall, on an annualized average basis. This represents savings of $940 per small business, and $3.6 million overall.

Regulatory Flexibility Analysis Statement (see footnote k)

	Initial Option		Flexible Option
	New standards for the PRP apply without a transitional period		Participating firms are provided a transitional period for compliance
Number of small businesses impacted (see footnote l)	3 760		3 760
	Annualized Average ($)	Present Value ($)	Annualized Average ($)	Present Value ($)
Compliance costs (see footnote m) (Represents cost of benefits paid and foregone EI premium reductions)	3,800,000	26,400,000	200,000	1,500,000
Total cost per small business	1,000	7,000	60	400

Note

Assumes that all firms comply with the new requirement at the end of the transitional period. For purposes of analysis, assumed date of compliance is January 2, 2021.

Consultation

Initial reaction to the announcement in Budget 2016 of the Government of Canada’s commitment to reduce the EI waiting period from two weeks to one was positive from employee associations and unions, including Unifor, Centrale des syndicats du Québec, Confédération des syndicats nationaux and Fédération des travailleurs et travailleuses du Québec.

Employer groups were less vocal but at least one, the Canadian Federation of Independent Business, did express concern regarding the potential impact on premium rates overall. Subsequently, consultations on the reduction of the EI waiting period were held via parliamentary debate as part of the tabling of the Budget Implementation Act, 2016, No. 1 in Parliament.

Proposed amendments to the EI Regulations in support of the legislative changes to the Employment Insurance (EI) waiting period were prepublished in the Canada Gazette, Part I, on October 15, 2016, for a period of 30 calendar days. The purpose of prepublication was to provide stakeholders with the opportunity to provide comments before proposed regulatory amendments are made.

Stakeholder reaction was positive to the proposal to include four-year transitional provisions for employers who already provide qualifying plans in respect of illness or injury under the EI Premium Reduction Program or plans that supplement an employee’s EI benefits; stakeholder feedback indicates this provides a realistic period of time for employers, and insurers, to adjust to a one-week EI waiting period. Employer groups also expressed appreciation for the Government’s collaborative approach to consultations, including outreach in advance of the pre-publication period to solicit and take into account their feedback to inform development of the proposed amendments to the EI Regulations.

No comments were received with respect to the regulatory proposal to reduce the maximum elimination period requirement from 14 consecutive days to 7 consecutive days for plans to qualify under the EI Premium Reduction Program.

Beyond comments on the proposed regulatory amendments, some comments were received regarding the legislative changes that reduce the waiting period. While supportive of the change to the waiting period, some employee groups noted it has two unintended consequences. In their view, claimants who would receive an extra week of EI benefits, as the result of a reduced waiting period, are most likely to be those who are returning to paid employment and, so, are least likely to be in need of help. Secondly, workers who receive top-up payments from employers for the two-week waiting period could now receive one less week of supplementary employer benefit payments.

The Government acknowledges the concerns raised regarding the legislative change to the waiting period. The objective of the waiting period measure is to ease financial pressure at the front end of a claim when EI-eligible individuals become unemployed or leave work temporarily due to health or family pressures and help claimants defray expenses as they adjust to the income shock in these circumstances. Amendments to the EI Regulations are required to support the legislative change. This includes the provision of four-year transitional periods to mitigate potential impacts on employers, and their employees, where possible, and allow time for employers and labour to adjust benefit plans as they see fit. However, as referenced earlier in the section on Benefits and Costs, the transitional provisions in the EI Regulations regarding employer supplementary benefit plans are not expected to mitigate the risk that in some cases an employee may receive one week less of employer benefits as a result of the legislative change to the waiting period.

Complementary regulatory amendments

In advance of prepublication, outreach to selected key stakeholders was undertaken by Employment and Social Development Canada (ESDC), including The Canadian Payroll Association, the Canadian Federation of Independent Business and the Canadian Life and Health Insurance Association Inc. Early indicators suggested that a period of transition within which to adjust to the reduction of the waiting period would be very helpful and that communications would be a key success factor.

Rationale

The Budget Implementation Act, 2016, No. 1, which received royal assent on June 22, 2016, contains amendments to the EI Act to reduce the employment insurance (EI) waiting period from two weeks to one week. The legislative change to the EI waiting period may impact employer benefit plans where they interact with the EI program (1) in the standards for participation in the EI Premium Reduction Program (PRP); and (2) in the treatment of payments by employers under benefit plans that supplement an employee’s EI benefits. Therefore, amendments to the EI Regulations would be required to mitigate the impact of the reduction of the waiting period on these plans and employees.

The Government of Canada’s objective is to align the standards in the EI Regulations regarding PRP plans with a one-week waiting period to ensure consistency with the PRP policy intent as well as to avoid administrative burden for affected employers, their employees and the Government of Canada. At the same time, there is recognition that a change in the PRP standard could affect some employers and their employees. It is the Government of Canada’s intent to provide flexibility to accommodate affected employers.

Implementation, enforcement and service standards

A strategic communications plan has been developed to raise awareness of upcoming changes in both the legislation and regulations, provide information, including information regarding the transitional periods , manage expectations, and undertake outreach with key stakeholders.

Existing implementation and enforcement mechanisms contained in the ESDC’s adjudication and controls procedures will ensure that these regulatory amendments are implemented properly.

Regarding service standards, the regulatory amendments are not expected to significantly advance ESDC’s continuing objective to reach a decision on 80% of all EI claims within 28 days (4 weeks) of the receipt of all pertinent information, as claim administration is tied to, among other things, employer information largely provided through bi-weekly payroll cycles.

Contact

Andrew Brown
Senior Director
Employment Insurance Policy Directorate
Skills and Employment Branch
Employment and Social Development Canada
140 Promenade du Portage, 7th Floor
Gatineau, Quebec
K1A 0J9
Telephone: 819-654-6849
Fax: 819-934-6631

Small Business Lens Checklist

1. Name of the sponsoring regulatory organization:

2. Title of the regulatory proposal:

3. Is the checklist submitted with a RIAS for the Canada Gazette, Part I or Part II?

☐ Canada Gazette, Part I ☑ Canada Gazette, Part II

A. Small business regulatory design

I	Communication and transparency	Yes	No	N/A
1.	Are the proposed Regulations or requirements easily understandable in everyday language?	☑	☐	☐
2.	Is there a clear connection between the requirements and the purpose (or intent) of the proposed Regulations?	☑	☐	☐
3.	Will there be an implementation plan that includes communications and compliance promotion activities, that informs small business of a regulatory change and guides them on how to comply with it (e.g. information sessions, sample assessments, toolkits, websites)?	☑	☐	☐
4.	If new forms, reports or processes are introduced, are they consistent in appearance and format with other relevant government forms, reports or processes?	☐	☐	☑
No new forms or processes are being created.
II	Simplification and streamlining	Yes	No	N/A
1.	Will streamlined processes be put in place (e.g. through BizPaL, Canada Border Services Agency single window) to collect information from small businesses where possible?	☐	☐	☑
Small businesses will continue to interact with the Canada Employment Insurance Commission (CEIC).
2.	Have opportunities to align with other obligations imposed on business by federal, provincial, municipal or international or multinational regulatory bodies been assessed?	☐	☐	☑
Affected small businesses will continue to interact with the CEIC; processes have not changed.
3.	Has the impact of the proposed Regulations on international or interprovincial trade been assessed?	☐	☐	☑
There are no trade considerations with this regulatory change.
4.	If the data or information, other than personal information, required to comply with the proposed Regulations is already collected by another department or jurisdiction, will this information be obtained from that department or jurisdiction instead of requesting the same information from small businesses or other stakeholders? (The collection, retention, use, disclosure and disposal of personal information are all subject to the requirements of the Privacy Act. Any questions with respect to compliance with the Privacy Act should be referred to the department’s or agency’s ATIP office or legal services unit.)	☐	☐	☑
Relevant information is not collected by any other departments or jurisdictions.
5.	Will forms be pre-populated with information or data already available to the department to reduce the time and cost necessary to complete them? (Example: When a business completes an online application for a licence, upon entering an identifier or a name, the system pre-populates the application with the applicant’s personal particulars such as contact information, date, etc. when that information is already available to the department.)	☐	☐	☑
The process is paper-based; it is not automated.
6.	Will electronic reporting and data collection be used, including electronic validation and confirmation of receipt of reports where appropriate?	☐	☐	☑
There are no reporting requirements. The process is paper-based; it is not automated.
7.	Will reporting, if required by the proposed Regulations, be aligned with generally used business processes or international standards if possible?	☐	☐	☑
There are no ongoing reporting requirements; affected employers may need to reapply to the CEIC using existing processes.
8.	If additional forms are required, can they be streamlined with existing forms that must be completed for other government information requirements?	☐	☐	☑
There are no additional forms.
III	Implementation, compliance and service standards	Yes	No	N/A
1.	Has consideration been given to small businesses in remote areas, with special consideration to those that do not have access to high-speed (broadband) Internet?	☑	☐	☐
2.	If regulatory authorizations (e.g. licences, permits or certifications) are introduced, will service standards addressing timeliness of decision making be developed that are inclusive of complaints about poor service?	☐	☐	☑
There are no changes to the process for authorizing participation.
3.	Is there a clearly identified contact point or help desk for small businesses and other stakeholders?	☑	☐	☐

B. Regulatory flexibility analysis and reverse onus

IV	Regulatory flexibility analysis	Yes	No	N/A
1.	Does the RIAS identify at least one flexible option that has lower compliance or administrative costs for small businesses in the small business lens section? Examples of flexible options to minimize costs are as follows: Longer time periods to comply with the requirements, longer transition periods or temporary exemptions; Performance-based standards; Partial or complete exemptions from compliance, especially for firms that have good track records (legal advice should be sought when considering such an option); Reduced compliance costs; Reduced fees or other charges or penalties; Use of market incentives; A range of options to comply with requirements, including lower-cost options; Simplified and less frequent reporting obligations and inspections; and Licences granted on a permanent basis or renewed less frequently.	☑	☐	☐
2.	Does the RIAS include, as part of the Regulatory Flexibility Analysis Statement, quantified and monetized compliance and administrative costs for small businesses associated with the initial option assessed, as well as the flexible, lower-cost option?	☑	☐	☐
3.	Does the RIAS include, as part of the Regulatory Flexibility Analysis Statement, a consideration of the risks associated with the flexible option? (Minimizing administrative or compliance costs for small business cannot be at the expense of greater health, security or safety or create environmental risks for Canadians.)	☑	☐	☐
4.	Does the RIAS include a summary of feedback provided by small business during consultations?	☑	☐	☐
V	Reverse onus	Yes	No	N/A
1.	If the recommended option is not the lower-cost option for small business in terms of administrative or compliance costs, is a reasonable justification provided in the RIAS?	☑	☐	☐

• Footnote a
  S.C. 2016, c. 7, s. 215
• Footnote b
  S.C. 2016, c. 38, subpar. 138(g)(i)
• Footnote c
  S.C. 1996, c. 23
• Footnote d
  S.C. 2016, c. 7, s. 215
• Footnote e
  S.C. 2016, c. 38, subpar. 138(g)(i)
• Footnote f
  S.C. 1996, c. 23
• Footnote g
  The expected coming-into-force date of the regulatory amendments is January 1, 2017. Therefore, only the fourth quarter of 2016–2017 is included.
• Footnote h
  Present value using a 7% discount rate.
• Footnote i
  The target group is employers participating in the PRP with existing plans that have an elimination period greater than 7 consecutive days and that may be affected by the regulatory amendment that reduces the elimination period standard from 14 days to 7 days.
• Footnote j
  The target group is the employees of the affected employers.
• Footnote k
  Using 2015 constant dollars, over a 10-year time horizon and using a 7% discount rate.
• Footnote l
  Based on administrative data, approximately 80% of participating employers in the Premium Reduction Program are small businesses and represent approximately 11% of employees.
• Footnote m
  Figures rounded.
• Footnote 1
  SOR/96-332
• Footnote 2
  The Canadian Federation of Independent Business estimates that less than 10% of small business is unionized (discussion with Employment and Social Development Canada).