Written by Eric Tucker and Leah Vosko, York University.
[This article draws on ideas explored in a forthcoming article by Professors Tucker and Vosko, and Professor Sarah Marsden of Thompson Rivers University that will be published in the Osgoode Hall Law Journal entitled “What We Owe Workers as a Matter of Common Humanity: Sickness and Caregiving Leaves and Pay in the Age of Pandemics“]
Crises and disasters are almost by definition disrupters. They reveal the limitations of our existing laws and institutional arrangements. Sometimes, these events provide an excuse to roll back social rights that often were won in the aftermath of previous disasters. However, they can also open up new windows of opportunity to create fairer and more just arrangements.
Employment insurance (EI) is a case in point. It was created in Canada in response to the Great Depression of the 1930s, and even required a change to our constitutional arrangements in order for it to be a national program. In the decades that followed, the system was expanded in response to the caregiving crisis triggered by the end of the male breadwinner model and the return of married women to the labour market. However, in more recent years, the program has been beset by rollbacks that have, amongst other changes, limited the number of unemployed Canadians receiving benefits.
The COVID crisis dramatically brought these limitations to the forefront as unemployment skyrocketed. The federal government understood that it could not permit the massive suffering and shock to the economy and consumer spending that would ensue if it did not take dramatic steps to make benefits available to the millions of Canadians who were out of work but who did not qualify for benefits or whose benefits were too paltry to provide meaningful support. There are now signs that the labour market is beginning to recover but the government has recognized that we are in a rocky transitional period and announced a new set of temporary benefits to address the continuing effects of the COVID crisis.
Yet, even when the COVID crisis passes, however long that takes, we cannot return to a regime whose flaws were so dramatically revealed. The government’s emergency and new recovery measures have revealed that a different regime is possible. The upcoming challenge then is to design a permanent one.
To advance that project, we identify four foundational principles (universality, sufficiency, security and worker-centred flexibility), each to be pursued on the basis of substantive gender and racial equality, and attentive to divisions among workers with different residency statuses, that should guide this redesign.
- Universality requires that all people who work for pay, whether as employees or independent contractors, regardless of their status in Canada, should be eligible for benefits. This principle also requires that the qualifications for receiving benefits, whether calculated in hours worked or money earned, should be set at levels that enable all or, at the very least, the vast majority workers engaged in the labour market to collect benefits when their labour market incomes drop as a result of unemployment or significant under-employment. Finally, the implementation of universality requires a funding formula that does not create incentives to structure paid work as self-employment rather than employment.
- Sufficiency requires that the level of benefits is high enough so that workers and their dependents avoid poverty and its consequence (e.g., loss of housing) while they are unemployed. For low-wage workers this requires benefit floors that are not calculated as a percentage of labour market incomes and based on individual not household earnings.
- Security requires that those who are temporarily laid off, or who take time off work because of sickness and caregiving should, in the case of lay-offs enjoy recall rights, and in the case of sickness and caregiving be protected against discrimination or termination for taking time off.
- Worker-Centred Flexibility requires that the system be designed to recognize that workers’ need to balance and rebalance income earning and participation in the multitudinous activities of social reproduction as their needs and those of their dependents and communities change.
Finally, we emphasize that the pursuit of substantive gender equality must inform the application of all these principles. Indeed, equity in all its dimensions must be built into the system. A system of EI benefits, for example, that reproduces gendered and other wage gaps, such as those based on citizenship status and race, is unacceptable for many reasons, including the fact that it entrenches outmoded and unjust gender roles by encouraging the lower paid worker in a family unit (typically the women in a male-female family) to take time off to preserve a household’s income level.
The temporary measures and reforms are a step in the right direction. The system has become more universal by reducing the number of hours an employee must have worked to qualify for benefits and by making benefits more available to self-employed workers. Sufficiency has been improved by minimum payments regardless of labour market incomes and some flexibility has been introduced by allowing sharing of caregiving benefits. Security is matter of employment standards, a matter largely under provincial and territorial jurisdiction, and most provinces have adopted measures that roughly but not completely provide leave rights that correspond to EI measures.
The most important point is that we cannot think of the transition as a return to the old normal. It did not provide fairness to workers in the past and it won’t in the future. We do not have a ready-made blueprint for the design of a new employment insurance regime, but we believe that the principles articulated above are foundational to ensuring that it provides workers what they are owed as a matter of common humanity.
Eric Tucker & Leah Vosko, “Relaunching Employment Insurance for the Post-Pandemic Economy: A Principled Approach” Canadian Law of Work Forum (August 31 2020): http://lawofwork.ca/?p=12977