Digest of Benefit Entitlement Principles Chapter 14 - Section 2

14.2.0 Authority and definitions

The Act provides the authority for making regulations limiting entitlement to EI benefits (EIA 54(j)). One such regulation provides that a person employed in teaching is not entitled to receive benefits for any week of unemployment that falls within any non-teaching period, other than maternity, parental, compassionate care and/or family caregiver benefits. However, claimants may be entitled to regular or sickness benefits during non-teaching periods if they meet the exempting conditions set out in EIR 33(2).

14.2.1 Teaching defined

EIR 33(1) defines teaching as the occupation of teaching in a pre-elementary, elementary or secondary school, including technical or vocational schools. Therefore, anyone who teaches at those levels or schools, regardless of the time spent in teaching, the subject, or the individuals being taught, is considered a teacher for the purposes of the regulation.

This definition applies to all teachers employed in school service centres, schools under provincial or municipal boards, as well as teachers in independent or private schools. Teaching at the post-secondary or university levels does not fall within the definition of a teacher, pursuant to the regulation. Although they are teachers, they do not fall under the provisions of EIR 33. Instead, they are subject to the same qualifying and entitlement rules as any other claimant.

Other employees of school boards and of school service centres, although part of the education systems, are not subject to this regulation because they are not in the occupation of teaching. This could include administrative and clerical staff, maintenance technicians, caregivers in a daycare, school bus drivers, teachers' assistants, and school principals, as long as their duties do not require them to teach any part of the curriculum.

14.2.2 Non-teaching period defined

The non-teaching period is defined as the period that occurs annually, at regular or irregular intervals, during which no work is performed by a significant number of people engaged in teaching (EIR 33(1)). Generally, a school year is comprised of teaching from September through June, with July and August as the primary non-teaching period. Within the teaching period of September to June, the non-teaching periods are normally the Christmas break and the mid-winter, or spring break.

A disentitlement under this regulation would apply to non-teaching periods only. Other sections of the Act would apply to a claimant's entitlement to EI benefits during teaching periods. Information on the provisions relating to entitlement during periods outside of the non-teaching period can be found in Chapter 4 and Chapter 10 of this digest.

A statutory holiday is not in itself a non-teaching period. However, a statutory holiday that falls within a non-teaching period will be included and considered as part of the non-teaching period. For example, Good Friday and Easter Monday are statutory holidays that become part of the non-teaching period if they fall within the period of spring break.

The provisions of the regulation only apply to the periods during which no work is performed by a significant number of teachers. The non-teaching periods may vary among provinces, and may even vary from one school to another within a region, a province, a school board, or a district. For example, a private school may not have its spring break at the same time as the public school board in the same area. However, the spring break for the private school is still considered a non-teaching period.

The test is whether it can be determined that a significant number of the claimant's teacher colleagues are not at work during a specific period. This criterion will not be met where there is no noticeable difference in the number of people teaching during specific periods of the year, compared to other periods.

Where year-round schooling exists, the year is usually divided into 4 instructional periods of roughly equal duration, separated by breaks. These breaks are the non-teaching periods for teachers working in year-round schooling.

14.2.3 Persons subject to disentitlement

Any person who requests benefits may be subject to a disentitlement during non-teaching periods, pursuant to the teaching regulation, if:

• they were employed in teaching for any part of their qualifying period (other than solely on a casual or substitute basis)
• they are under a contract of employment for teaching during their benefit period (EIR 33(2)), and
• linkages exist between a previous and current contract

A claimant may be exempt from disentitlement during the initial non-teaching period in their benefit period if no linkages exist between their previous and current contract. However, a disentitlement may apply if the claimant remains under a teaching contract, during other non-teaching periods within that benefit period.

Even if none of the above conditions apply to a claimant, they could still be disentitled under other provisions of the EI Act and Regulations.

14.2.4 Early Childhood Educators

Entitlement to benefits for Early Childhood Educators (ECEs), like all other claimants, is considered based on the specific employment circumstances of the individual. Individuals whose duties include teaching any part of a school curriculum, are considered to be employed in the occupation of teaching (including ECEs), regardless of the level being taught or the title of their position. The job description, workplace, duties and responsibilities of ECEs vary between regions within Canada (some teach, some do not). As a result, a decision regarding entitlement to EI benefits cannot be rendered based solely on the job title the claimant uses.

In accordance with the EI Regulations, a claimant who is employed in teaching is not entitled to receive EI regular or sickness benefits unless they meet one of the exceptions specified in EIR 33(2). In other words, once it has been determined that a claimant is employed in teaching, the provisions of EIR 33 must be considered to determine whether they are entitled to benefits for any non-teaching period during which no work is performed (in other words, spring break, summer break, and Christmas break).

The decision regarding entitlement to benefits in relation to whether or not the claimant is considered to be employed in the occupation of teaching is based on the information provided by the claimant and the employer.

[ August 2021 ]