Background

Congratulations, you’re planning a family! If you or your partner is pregnant, or you are thinking about becoming a parent, you are probably wondering what maternity leave, pregnancy leave and parental leave mean and how your employment may be affected.

The Federal government has also proposed significant changes which may increase your rights. This article explores the current rights and responsibilities of employees and employers as well as the proposed changes.

An employee’s right to take unpaid time off work because of a pregnancy or new child is found in the Canada Labour Code (“CLC”) and Employment Standards Act (“ESA”). The CLC is for federally regulated employees across Canada, like those who work for banks, airlines, or the federal government.  The ESA is for provincially regulated employees in Ontario.

 

LEAVES AND RIGHTS

Pregnancy Leave (Maternity Leave)

Pregnancy Leave is often referred to as maternity leave. It is only available to women as birth-mothers.

Both federal and provincial law on maternity leaves apply to employees who are full-time, part-time, permanent or term contract employees.

Where the law requires an employee to have worked for a period of time prior to a leave, vacation and sick days during that period still count as working.

Under the CLC (federally regulated employees)

• The pregnant employee must have worked for the employer for six consecutive months when her leave begins.
• The employee has to provide a medical note that she is pregnant.
• The pregnancy leave is 17 weeks unpaid.
• The leave can start as early as 11 weeks prior to baby’s due date but must start the day the baby is born.
• If the baby is hospitalized, the leave is extended for the period of hospitalization.

Under the ESA (provincially regulated employees in Ontario)

• The pregnant employee must have worked for the employer for at least 13 weeks prior to her expected due date.
• The pregnancy leave is 17 weeks unpaid.
• The leave can start as early as 17 weeks beforethe baby’s due date but must start at the latest on the day the baby is born.
• If the employee starts the leave 17 weeks before the due date and is still pregnant at 17 weeks, the leave continues.
• The employee may need to provide a medical note to her employer of the baby’s due date.

Miscarriage:

• If an employee suffers a miscarriage within 17 weeks of the due date, she is eligible for pregnancy leave.
• The leave must start on the day of the miscarriage.
• The leave will end 17 weeks after leave began or 6 weeks after miscarriage – so the leave could be longer than 17 weeks.

 

Parental Leave

A new parent is entitled to an unpaid leave from work to care for a new child. This covers fathers, mothers, adoptive parents, and those in a relationship with a new parent who intend to treat the child as their own.

Under the CLC (federally regulated employees)

• The employee must have worked for the employer for six consecutive months when the leave begins.
• The parental leave is 37 weeks
• If both parents work for a federally-regulated employer, the two parents are entitled only to a combined parental leave of up to 37 weeks.
• Parents can take their parental leave at the same time, or one after the other, as long as the total combined parental leave does not exceed 37 weeks.
• For birth-mothers, the total duration of the pregnancy and the parental leaves must not exceed 52 weeks.
• Parental leave may be taken any time during the 52-week period starting the day the child is born or the day the child comes into the parent’s care.
• The total weeks between both parents is 52 weeks.

Under the ESA (provincially regulated employees in Ontario)

• The employee must have worked for the employer for at least 13 weeks prior to her the leave.
• Birth-mothers are entitled to 35 weeks of unpaid parental leave if they also take pregnancy leave (for a total of 52 weeks of unpaid leave).
• Other parents are entitled to 37 weeks of leave.
• Birth-mothers must start the parental leave as soon as their pregnancy leave ends.
• Other parents must start their leave within 52 weeks after the child is born or placed with the parent for the first time
• The leave must be taken all at once, the employee cannot break it up.
• The total weeks between both parents could be 89 weeks.

Notice

CLC

• An employee must give the employer written notice at least four weeks before beginning either maternity or parental leave. The notice must advise the employer of the intended length of leave.

ESA

• The employee must give two weeks written notice before beginning a pregnancy or parental leave.
• The employee does not have to advise of a return date. If she/he does not it is assumed that the leave will be the full period.
• If the employee wants to return earlier or resign, she/he must give four weeks written notice.

Reinstatement

Both ESA and CLC

Upon return from pregnancy or parental leave, an employee must be reinstated in her/his former position, or be given a comparable position in the same location and with the same wages and benefits. If wages went up while away, has to be paid at higher rate

If an employer has dismissed an employee for legitimate reasons that are totally unrelated to the fact that the employee took a leave, the employer does not have to reinstate the employee.

Employees continue to earn credits toward length of employment, length of service, and seniority during periods of leave.

HUMAN RIGHTS

Human Rights Protections

Under both the Canadian Human Rights Act and the Ontario Human Rights Code, every employee has the right to equal treatment with respect to employment, and to be free from discrimination because of family status or sex including pregnancy. Discrimination occurs if an employee experiences adverse treatment as a result of a pregnancy, because he or she took a leave to care for the new child, or because she is breast-feeding.

Your employer cannot fire you or lay you off because you are pregnant. Your employer cannot deny you opportunities at work because you are, or may become, pregnant. This includes training, promotion or receiving certain projects.

If you are pregnant or nursing and require modifications to your job function or another position, your employer may be required to accommodate your needs.  You should speak to your physician about appropriate accommodation. The Ontario Human Rights Commission has stated that accommodation could include establishing a flexible work schedule, temporary reassignment or providing a quiet area for rest during breaks.

For example, the Human Rights Tribunal of Ontario recently held in , that an employer’s decision not to pay an employee on parental leave a bonus because she was on maternity leave for the last month of the retention period was discriminatory.

Or, in when the employer learned the employee was pregnant he terminated her employment.  She was awarded $20,000 as general damages.

 

BENEFITS

Employment Insurance Benefits

Under the Employment Insurance Act, maternity or parental benefits are available to individuals who are pregnant, have recently given birth, are adopting a child, or are caring for a newborn. This applies to all employees regardless of whether their employment is provincially or federally regulated.

To qualify:

• employees must have worked 600 hours during the qualifying period;
• employees must have paid EI premiums; and
• during leave, the employee’s normal earnings are reduced by more than 40%

Most eligible employees on maternity or parental leave receive 55% of their average weekly earnings, with a maximum of $543 per week.

Note the difference between EI maternity and parental benefits:

• Maternity benefits are only offered to biological mothers, including surrogate mothers, who cannot work because they are pregnant or have recently given birth.
  • A maximum of 15 weeks of EI maternity benefits is available.
  • The 15 weeks can start as early as eight weeks before the expected date of birth, and can end as late as 17 weeks after the actual date of birth.

• Parental benefits are offered to biological, adoptive, or legally recognized parents who are caring for a newborn or newly adopted child. In total, there are 35 weeks of parental benefits available to eligible parents. Both parents can apply for these benefits but they have to share the benefits.

Benefits Received from the Employer

Employers can choose to pay a portion their employees’ wages above the EI amounts during these leaves, but have no legal obligation to do so.

 

Continuation of Employee Benefits

During a pregnancy and parental leave, the employee is considered to be continuously employed for the calculation of vacation entitlements, wage increases, termination entitlements, and pension, medical and other benefits ordinarily received.  The employer must also continue to pay benefit premiums during pregnancy leave—except in situations where the employee pays part of the benefit premium and chooses not to pay their portion during the leave.

 

PROPOSED CHANGES

On 22 March 2017, the Canadian Federal Government released the 2017 Budget proposing changes to parental and maternity leaves and EI described above.

The primary changes are that:

• Parents have a choice to receive EI benefits for 12 months or 18 months.
• If parents chose 18 months the total amount is less.  Benefits would be calculated at 33% of average weekly earnings instead of 55% for 12 months. The maternity leave benefits would remain at 55%
• Birth-mothers can claim EI maternity benefits from 12 weeks before their due date (up from 8)
• Extending the pregnancy and parental leave under the CLC to 18 months

It is clear from the above information that maternity leave and parental rights can be complicated.  If you have further questions about your rights when starting a family, you can contact us at [email protected] or 647-204-8107.