We often receive calls about employees’ rights to maternity leave and parental leave. The law in this area can be complicated and confusing. Recent media reports about the 2018 Federal Budget have not helped clarify the situation.
What was Reported
Many media outlets reported that the Budget includes a new leave for fathers. The reporting suggested that once the Budget is implemented, fathers will then be able to take a leave when they have a new baby.
What is Wrong, and What the Budget Actually Says
This reporting is misleading.
Fathers, and any other parent, can take leave after the birth or adoption of their baby right now, as long as they meet the criteria in the law. They have been able to do so for quite some time. This right exists currently regardless of what changes the new budget bring in. For a detailed summary of pregnancy leave, maternity leave, and parental leave rights for provincial and federal employees keep reading here.
The right to take a leave and have a job to come back to comes from the Employment Standards Act and Canada Labour Code. The right to receive money from the government while on leave comes from the Employment Insurance Act (EI Act).
This is where the confusion started.
The Budget proposes to amend the EI Act. It is not giving fathers the right to take leave. They already have that. Rather, it will create the EI Parental Sharing Benefit.
Currently, new parents can receive 35 weeks of EI after a baby is born (or up to 61 weeks at a lower rate). Birth Mothers only get an extra 17 weeks of EI. While parents could split the 35 weeks of EI, commonly, the mother ends up receiving all of the EI herself, because she is the only one who takes a leave from work.
The proposed change to the EI Act would increase the number of weeks of EI that parents could receive to 40 weeks. However, the extra five weeks are only available if the other parent (usually the father) takes the time off work. In the minimum split, the mother would take 35 weeks and the father would take 5 weeks. However, just like now, the parents could split the weeks in a different way – like 20-20. Keep in mind, this is only the right to payment of EI. Parents still have the right to take a leave from work, even if they do not receive the EI.
If you are starting a family and want more information about your rights, or if you have been terminated while pregnant or on parental leave, and you want to speak with an employment lawyer, please contact us at [email protected]awfirm.ca or 1-888-640-1728 (toll-free) or 647-204-8107 (within the GTA).
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