PREGNANCY, PARENTAL AND MATERNITY LEAVE 102
We often receive calls from expecting parents asking about their rights to benefits and time off work once their child arrives. This article reviews the rights for employees of federally regulated companies in Canada, like banks and airlines. If you work for a provincially regulated company, see here.
An employee’s right to take unpaid time off work because of a new child is found in the Canada Labour Code.
A pregnant employee is entitled to an unpaid leave of absence if she has completed six consecutive months of continuous employment (but not necessarily active employment) with the same employer when her leave begins. The employee is entitled to take up to 17 weeks of unpaid leave—which can begin no earlier than 13 weeks prior to the estimated date of the birth, and must end no later than seventeen weeks following the actual date of birth.
A new parent is entitled to an unpaid leave from work to care for a new child. This parental leave is available to natural or adoptive parents who have completed six consecutive months of continuous employment (but not necessarily active employment) with their employer at the time their leave begins.
If both parents work for a federally-regulated employer, the two parents are entitled to a combined parental leave of up to 63 weeks. Parents have the option of taking their parental leave at the same time, or one after the other, as long as the total combined parental leave does not exceed 63 weeks. However, for birth-mothers, the total duration of the pregnancy and the parental leaves must not exceed 78 weeks. Parental leave may be taken any time during the 78-week period starting the day the child is born or the day the child comes into the parent’s care.
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, during a leave period, the wages and benefits of a group of employees are reduced as part of a reorganization plan, an employee who is reinstated in that group will receive no more than the wages and benefits she/he would have received if she/he had been at work during the reorganization. Likewise, if wages and benefits for the employee’s group are increased during leave, the employee would be entitled to the increases upon return to work.
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.
An employee on leave may be eligible to receive employment insurance benefits if they have worked for 600 hours during the qualifying period, have paid EI premiums and their normal weekly earnings are reduced by more than 40%.
Most eligible employees on maternity or parental leave receive 55% of their average weekly earnings, with a current maximum of $547 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 12 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. The eligible parent may choose between 35 weeks of parental benefits at the full rate, or 61 weeks at a reduced rate. Both parents can apply for these benefits but they have to share the benefits. There are many ways you can decide to use your parental leave. For instance, one of the parents can take the entire 35 weeks of benefits, or both parents can share them. Note that the 2018 Federal Budget proposes changing this to extend the total weeks to 40, if both parents take off at least 5 weeks. Look for this change in the summer of 2019.
While an employee may be entitled to EI maternity or parental benefits under the Employment Insurance Act if their normal weekly earnings are reduced by more than 40%, the rights associated with pregnancy and parental leave under the ESA are only available to an employee who ceases to work during their leave.
Benefits Received from the Employer
Pregnancy and parental leaves are unpaid. Employers can choose to pay a portion their employees’ wages during this time, 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.
Human Rights Protections
Under the Canadian Human Rights Act, every employee has to 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 or because he or she took a leave to care for the new child.
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.
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] or 1-888-640-1728 (toll free) or 647-204-8107 (within the GTA).
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