By Paul Russell, AdvocateDaily.com Contributor
Employees returning from maternity leave must be given their former job back, or if it no longer exists, a comparable position, though there are some exceptions to that rule, says Toronto employment lawyer Doug MacLeod.
“It’s a pretty strongly embedded public policy that women shouldn’t be punished for having children,” says MacLeod, principal of MacLeod Law Firm.
“Employers have to hold a job for those on maternity leave unless that position has disappeared and there are no other comparable jobs,” he tells AdvocateDaily.com, citing Ontario’s Employment Standards Act (ESA).
If a woman is on maternity leave and the company reorganizes and eliminates that position, she would be entitled to whatever termination payments are provided within her employment agreement, or pay in lieu of common law notice of termination if she does not have one, MacLeod says.
Problems arise when companies claim to have reorganized and eliminated the position, he says, when in fact they have simply modified the duties associated with that job, as they prefer the replacement worker to the employee on maternity leave.
“The firm is faced with the law, which flatly says you have to bring an employee on maternity leave back,” MacLeod says. “It doesn’t say you only have to bring her back if the replacement is not better.”
Claims the job no longer exists because of a bogus reorganization are often easy to identify, he says, especially if that woman facing a layoff hires an employment lawyer who is aware of this tactic.
Each scenario where this arises is unique, he says, depending on the person’s position, the sensibility of the employer and if the woman at the centre of the issue has job skills that are in demand.
“If the employee knows they can get a job in a week, they may not care, and might be willing to accept a termination package,” MacLeod says.
People planning to go on maternity leave should inform their employer as soon as they know they are pregnant, he advises.
“In some cases, the employer will find out through the grapevine that a woman is pregnant and realize that she will be taking a leave, which could create all kinds of operational problems,” MacLeod says. “So instead of waiting for that to happen, the company will terminate her employment before the pregnancy is disclosed, and claim that it was unaware that she was pregnant.”
He says this tends to happen more often with small firms, “where the impact of the legislation around maternity leave has a much bigger impact.”
Under Ontario’s ESA, he says an employee is “entitled to pregnancy leave whether she is a full-time, part-time, permanent or term contract employee provided that … she started her employment at least 13 weeks before the date her baby is expected to be born.”
Those women who do not fall within this 13-week window can still qualify for protection under the Ontario Human Rights Code, MacLeod says.
“This is sort of an overlapping right, but sometimes the rights under the Act may not be broad enough if a pregnant employee is being badly treated,” he notes.
From the employer’s point of view, MacLeod says there are few options to rehiring those on maternity leave, other than restructuring.
“The legislation generally doesn’t cause as many problems for large organizations because people are taking leaves for all kinds of reasons, and the firm has relationships with temporary help agencies,” he says.
“Small employers tend to be more adversely impacted by the legislation, as it can result in a great deal of extra work and stress for other employees if the firm doesn’t temporarily replace the person on maternity leave,” MacLeod adds.
Women in Ontario can now claim 18 months of maternity leave, with 12 months of employment insurance benefits paid out over the 18-month span.
“Most women can’t afford to live on that amount of money for that long, but Ontario employers have to be ready to accommodate it if requested,” MacLeod says.
