Pregnancy, Parental, and Maternity Leave 101 (Provincial)
We often receive calls from expecting parents asking about their rights to maternity leave or parental leave and benefits once their child arrives. This article reviews the rights for employees of provincially regulated companies in Ontario. If you work for a federally regulated company, like a bank or airline, see here.
An employee’s right to take unpaid time off work because of a new child is found in the Employment Standards Act (“ESA”).
Pregnancy Leave (Maternity Leave)
Pregnancy Leave is often referred to as maternity leave. A pregnant employee is entitled to an unpaid leave of absence if she is a full-time, part-time, or contract employee who has been employed (but not necessarily actively working) for at least 13 weeks prior to her due date. The employee is entitled to take up to 17 weeks of unpaid leave that must be taken all at one time.
A new parent is entitled to an unpaid leave from work following the birth of his/her child or the coming of the child into the parent’s care and control. This parental leave is available to birth parents, adoptive parents, or a person who is in a relationship with a parent and intends to treat the child as his or her own. Like pregnancy leaves, the employee may be working full-time, part-time, or on a contract, but he must have been employed for at least 13 weeks prior to the start of the leave. Birth-mothers are entitled to 61 weeks of unpaid parental leave if they also take pregnancy leave (for a total of 78 weeks of unpaid leave). Other parents are entitled to 63 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 placed with the parent for the first time.
Upon return from pregnancy or parental leave, the employer must reinstate the employee to the position they most recently held, if it still exists, or to a comparable position, if it does not.
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 Ontario Human Rights Code, 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. Discrimination on the grounds of sex includes discrimination because of 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. For example, the Human Rights Tribunal of Ontario recently held in Ifrah v. National Income Protection Plan Inc, that an employer’s decision not to pay an employee on parental leave a bonus that they would have otherwise received if they were actively employed was discriminatory.
If you are starting a family and want more information about your rights, or if you have been terminated while pregnant or on maternity 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).