When it comes to the law around returning to work following a pregnancy or parental leave, there are a number of facts that both employers and employees need to know, Toronto employment lawyers Doug MacLeod and Nicole Simes tell AdvocateDaily.com in this video.
As Simes, a lawyer at MacLeod Law Firm, explains, the Employment Standards Act sets out the particulars of pregnancy and parental leave for employees.
“An employee who’s a birth mother can take 17 weeks’ pregnancy leave and 35 weeks’ parental leave, and everyone else can take 37 weeks’ parental leave. The Employment Standards Act also allows employees to return to the same or similar position that they held before they took the leave, this gives new parents peace of mind to return to the work that they had before they left to care for their children.”
From an employer perspective – and specifically for small business owners – the problem is that employees are not required to provide an indication of whether or not they are going to come back to work until the last four weeks of the leave, says MacLeod, principal at MacLeod Law Firm.
“So when they’re replacing people on mat leave, they don’t really know, in many cases, whether it’s a temporary replacement or a permanent replacement,” he adds.
Employees, says Simes, are required to give four weeks’ notice of returning to the job that they were in.
However, she adds, “what often happens is employers are happy with the person who’s filled the maternity leave, and they often don’t bring the employee who’s taken the leave back to work or back to the same position that they held before.”
Indeed, MacLeod says the firm gets calls from a lot of employers who want to do exactly that – they like the replacement, and do not want to bring the person on leave back.
He says, however, that employers need to keep in mind that “when you’re hiring these replacements, you need to manage expectations up front, not only of the employee, which isn’t usually a problem, but of the employer themselves, because they need to understand employees can come back if they want to.”
If an employer doesn’t bring an employee back because they were on pregnancy or parental leave, says Simes, “they also risk claims under the Human Rights Code for discrimination on the basis of pregnancy.”
At the same time, says MacLeod, just because employers are required to bring people back to the same position, it doesn’t mean that they cannot reorganize during an employee’s maternity leave.
“In other words, if the business is moving in a direction and a reorganization is necessary, and the person’s position is eliminated, the employer, if there is a business reason for the decision, can eliminate the position and the employee is not entitled to the position back in that case.”
While this is true, says Simes, she adds that “in that case, the employer also needs to make sure that they give the employee on a pregnancy or parental leave adequate notice or pay in lieu of notice, just like any other employee.”
