We often get calls from employers asking about their rights and obligations toward employees seeking pregnancy and parental leaves.

Applicable Legislation

About 90% of employees are provincially regulated and in Ontario the Employment Standards Act (the “ESA”) is the governing legislation. For more information about the ESA, click here.

Federally regulated employers such as banks, airlines and the federal government are governed by the Canada Labour Code.

Employees on pregnancy and parental leave are often entitled to employment insurance benefits and this legislation applies to most provincially and federally regulated employees.

This blog discusses proposed changes to the applicable federal legislation and summarizes an employer’s obligations to pregnant employees under the ESA.

Proposed Changes to the Canada Labour Code & the Employment Insurance Act

On March 22, 2017, the Canadian Federal Government released the 2017 Budget which proposed changes to parental and maternity leaves for federally regulated employees and employment insurance benefits. The primary changes are as follows:

• Extending the pregnancy and parental leave under the CLC to 18 months
• Parents have a choice to receive EI benefits for 12 months or 18 months.
• If parents choose 18 months the total amount is less.  Benefits would be calculated at 33% of average weekly earnings instead of 55% for 12 months. The maternity leave benefits would remain at 55%
• Birth-mothers can claim EI maternity benefits from 12 weeks before their due date (up from 8) 

The federal government has not tabled legislation to implement these proposals and no changes have been made to the current laws. We will inform you in a subsequent blog if and when any amendment to the current laws take place.

The Ontario government has not tabled any comparable changes to the ESA but we expect the government to propose significant changes to the ESA later this year. For a summary of some of the changes under consideration, click here.

The balance of this blog summarizes some of the relevant provisions in the ESA relating to pregnancy and parental leaves. This is legal information and the reader should consult an employment lawyer to obtain legal advice on an specific situation involving a pregnant employee.

An Employer’s Obligations to Pregnant Employees and Employees Seeking Parental Leave under Ontario’s ESA

Pregnancy Leave

Pregnancy Leave is often referred to as maternity leave. It is only available to women as birth-mothers. Employees who are full-time, part-time, permanent or term contract employees are eligible for a pregnancy leave.

• The pregnant employee must have worked for the employer for at least 13 weeks prior to her expected due date.
• The pregnancy leave is 17 weeks unpaid.
• The leave can start as early as 17 weeks before the baby’s due date but must start at the latest on the day the baby is born.
• If the employee starts the leave 17 weeks before the due date and is still pregnant at 17 weeks, the leave continues.
• The employee may need to provide a medical note to her employer of the baby’s due date.

Miscarriage:

• If an employee suffers a miscarriage within 17 weeks of the due date, she is eligible for pregnancy leave.
• The leave must start on the day of the miscarriage.
• The leave will end 17 weeks after leave began or 6 weeks after miscarriage – so the leave could be longer than 17 weeks.

Parental Leave

A new parent is entitled to an unpaid leave from work to care for a new child. This covers fathers, mothers, adoptive parents, and those in a relationship with a new parent who intend to treat the child as their own.

• The employee must have worked for the employer for at least 13 weeks prior to her the leave.
• Birth-mothers are entitled to 35 weeks of unpaid parental leave if they also take pregnancy leave (for a total of 52 weeks of unpaid leave).
• Other parents are entitled to 37 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 born or placed with the parent for the first time
• The leave must be taken all at once, the employee cannot break it up.
• The total weeks between both parents could be 89 weeks.

Notice of Pregnancy Leave

• The employee must give an employer two weeks written notice before beginning a pregnancy or parental leave.
• The employee does not have to inform the employer of a return date. If she/he does not provide a return date, it is assumed that the leave will be the full period.
• If the employee wants to return earlier or resign her employment, she/he must give four weeks written notice.

Right to Reinstatement

When returning from pregnancy or parental leave, an employee must be reinstated in their former position, or be given a comparable position in the same location and with the same wages and benefits. If wages went up while away, the returning employee must be paid at the higher rate.

If an employer has dismissed an employee for legitimate reasons that are totally unrelated to the fact that the employee took a leave, the employer is not required to reinstate the employee.

Employees continue to earn credits toward length of employment, length of service, and seniority during periods of leave.

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 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, because he or she took a leave to care for the new child, or because she is breast-feeding.

An employer cannot fire or lay off an employee because she is pregnant. An employee cannot be denied opportunities at work because they are, or may become, pregnant. This includes training, promotion or receiving certain projects.

If an employee is pregnant or nursing and requires modification to their job function or another position, your organization may be required to accommodate the employee’s needs.  The Ontario Human Rights Commission has stated that accommodation could include establishing a flexible work schedule, temporary reassignment or providing a quiet area for rest during breaks.

The cost of not accommodating a pregnant employee can be significant. 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 because she was on maternity leave for the last month of the retention period was discriminatory.

Similarly, the cost of terminating an employee can be significant. In Wratten v 2347656 Ontario Inc., an employee was awarded $20,000 as general damages because her employer terminated her employment after learning the employee was pregnant.

For over 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him directly at 416 317-9894 or at [email protected]