Maternity and Parental Leave Issues
I. PROVINCIAL AND FEDERAL MATERNITY AND PARENTAL LEAVE
PROVISIONS: HOW DO THEY DIFFER?
EMPLOYMENT STANDARDS ACT
A. PREGNANCY LEAVE
The Employment Standards Act is the legislation that contains the basic rules applicable in Ontario regarding working and employing people. Workers and employers have rights and responsibilities under the Act.
Pregnancy leave is the right that enables a pregnant woman to take 17 consecutive weeks of unpaid leave from work any time from 17 weeks before the child is due to be born.
The date on which the leave is commenced is the choice of the employee, not the employer.
To be eligible for pregnancy leave, an employee must have been hired at least 13 weeks before the due date of the child. This right exists regardless of whether the employee was employed on a full-time or part-time basis.
If the child is born early, but within 17 weeks of the employee's due date, she can take at least 17 weeks off work. If the mother is not eligible for parental leave after the birth, she can take at least 6 weeks off after the delivery, even if that means that she is away from work for more than 17 weeks.
Eligibility for pregnancy leave depends on the date the baby is expected to be born, not the date the baby is actually born. Therefore, the date the child is expected to be born must be at least 13 weeks after the employee started her new job. A birth earlier than expected does not affect the employee's entitlement. However, if an employee starts her pregnancy leave as planned but her baby is born late, she is not entitled to take any more than the available 17 week leave.
B. PARENTAL LEAVE
Parental leave is a completely separate right that allows new parents (fathers, mothers and adopting parents) to take time off work when a baby or child first comes into their care. Again, the leave is unpaid.
A parent is a man or woman who:
- is the birth parent of a child;
- adopts a child;
- becomes a step-parent; or
- is in a long-lasting relationship with the parent of a child and intends to treat the child as his or her own.
To be eligible for parental leave, an employee must have been hired by his or her employer at least 13 weeks or more before the date the leave is supposed to start.
The length of parental leave available to new parents under the Act was recently changed. The amount of leave employees are entitled to depends on when their baby was born or the child first came into their care.
Parental leave must be started no later than 52 weeks after the birth of the child or the date the child first came into the custody, care and control of the parent.
If an employee is on pregnancy leave, parental leave must start when pregnancy leave ends and it must be taken all at once.
If the employee became a new parent of a child who was born or first came into their care before December 31, 2000, parental leave entitlement is as follows:
Up to 18 weeks off work to care for that new child.
If the employee is the birth mother, she can take 18 weeks of parental leave right after her 17 weeks of pregnancy leave for a total of 35 weeks.
If the employee became a new parent of a child who was born or first came into their care on or after December 31, 2000, parental leave entitlement is as follows:
If the employee also took pregnancy leave, then she may take up to 35 weeks off after her 17 weeks of pregnancy leave ends for a total of 52 weeks; or
If the employee did not take the pregnancy leave, then he or she is entitled for up to 37 weeks leave.
This is the maximum parental leave entitlement under the Act, however, some employers do offer longer parental leave as a term of employment or as part of the overall employment relationship.
C. PREGNANCY LEAVE NOTIFICATION REQUIREMENTS
The employee must give the employer written notice two weeks or more before she plans to start her leave stating:
a. The date that she plans to start her leave;
b. The date she plans on returning to work (if this is not included the employer will assume that the employee will take the full 17 weeks pregnancy leave); and
c. Whether or not she plans on taking parental leave as well.
If the employee is unsure about whether she would like to take parental leave at the time she takes pregnancy leave, she may wait and give notice for parental leave two weeks before the pregnancy leave ends.
The employee is also required to provide a medical certificate from a doctor with the expected due date.
An employee must also give written notice about any change in plans and any new dates.
If the employee has already started her pregnancy leave and the dates of the leave change (an earlier or later leave is requested), the employee must tell her employer about this two weeks or more before the new date of leave.
After the employee has started her leave, she must give written notice at least four weeks before any change in plans occurs (an earlier or later return to work is requested).
D. PARENTAL LEAVE NOTIFICATION REQUIREMENTS
The employee must give the employer written notice two weeks or more before parental leave is planned stating:
a. The date that the employee plans to start the parental leave; and
b. The date the employee plans on returning to work (if this is not included the employer will assume that the employee will take the maximum parental leave available under the Act).
If a leave is being taken by a mother planning on taking both pregnancy leave and parental leave, notice must be given that parental leave will be taken.
This notice must be given at least two weeks before the pregnancy leave ends. Alternatively, it can be given at the same time as the mother provides notice for pregnancy leave.
Again, an employee must also give written notice about any change in plans and any new dates.
If the starting date of parental leave changes, the employee must tell the employer about it two or more weeks before the date the change happens. For example:
- If the employee wants to start the leave earlier, written notice must be given of the change at least two or more weeks before the new date; or
- If the employee wants to start the leave later, written notice must be given at least two or more weeks before the date given earlier as the proposed start of the leave.
If the employee wants to change the date of the return to work, written notice must be given at least four weeks before the change happens. For example:
- If the employee wants to return to work earlier than first said, written notice must be given to the employer at least four or more weeks before the new earlier date; or
- If the employee wants a longer leave (but not longer than the limit allowed under the Employment Standards Act), written notice must be given to the employer at least four or more weeks before the employee first said he/she would be going back to work.
If parental leave is required to be commenced suddenly, because a baby or a child came earlier than expected, the employee has two weeks after commencing leave to give written notice to the employer. The notice should indicate why the leave had to be commenced suddenly and the date the employee will return to work.
FEDERAL LEGISLATION
1.CANADA LABOUR CODE
The provisions of the Employment Standards Act do not apply to industries regulated by the Federal Government including Canada Post, railways, airlines, banks, shipping companies and radio and television broadcasters. These and other industries are covered by the Federal Canada Labour Code.
A. PREGNANCY LEAVE
Pursuant to Section 206 of the Canada Labour Code, every employee who has completed 6 consecutive months of continuous employment with an employer and provides her employer with a certificate of a qualified medical practitioner certifying that she is pregnant is entitled to and shall be granted a leave of absence from employment of up to 17 weeks, which leave may begin not earlier than 11 weeks prior to the estimated due date and end not later than 17 weeks following the actual date of delivery.
B. PARENTAL LEAVE
Every employee who has completed 6 consecutive months of continuous employment with an employer is entitled to and shall be granted a leave of absence from employment of up to 37 weeks to care for a newborn child of the employee or a child who is in the care of the employee for the purposes of adoption under the laws governing adoption and the province in which the employee resides.
The aggregate amount of leave of absence from employment that may be taken by two employees under this section in respect of the birth or adoption of any one child shall not exceed 37 weeks.
C. MATERNITY AND PARENTAL LEAVE TAKEN
The aggregate amount of maternity and parental leave that may be taken by one or two employees in respect of the same birth shall not exceed 52 weeks.
D. NOTIFICATION REQUIREMENTS
Every employee who intends to take a leave of absence from employment shall inform the employer in writing of the length of leave intended to be taken as well as give at least 4 weeks notice in writing to the employer unless there is valid reason why the notice cannot be given.
2.EMPLOYMENT INSURANCE ACT
Eligible workers can apply for maternity benefits from the Employment Insurance (EI) Program during their pregnancy leave.
EI maternity benefits are payable to the natural mother in the period surrounding the birth of the child and may start from 8 weeks before the expected date of birth to the week of actual delivery.
As of December 31, 2000, to be eligible, the employee must have worked a minimum of 600 hours in the previous 52 weeks or since the start of her last claim.
A. PREGNANCY LEAVE
A maximum of 15 weeks of maternity benefits are allowed after a two week waiting period (for a total of 17 weeks) and can be collected within 17 weeks of the actual week of confinement or week of expected confinement, whichever is later.
The 17 week limit can be extended and payments delayed for every week a baby is confined to the hospital, for up to 52 weeks following the week of the child's birth.
It may also be possible for the employee to receive sick benefits in addition to the maximum weeks of maternity benefits, should an employee be unable to work because of complications due to pregnancy or child birth or by reason of an unrelated illness.
B. PARENTAL LEAVE
The maximum number of weeks for which benefits may be paid for the care of one or more newborn or adopted children as a result of a single pregnancy or placement is 35 weeks, after a two week waiting period, for a total of 37 weeks.
In a claimant's benefit period, the claimant may combine weeks of benefits to which the claimant is entitled, but the maximum number of combined weeks is 50.
Benefits usually cover 55% of a claimant's weekly insurable earnings, to a maximum of $413.00 per week. There are exceptions B claimants who are in a low income family with a net income below $25,921.00 and who are receiving the Child Tax Benefit (CTB) can receive a higher benefit rate.
Under both Federal and Provincial Legislation, following the leave of absence, an employer is required to re-instate the employee to her former position if it exists. If the position does not exist, the employee must be given a position with comparable wages and benefits.
II. HUMAN RIGHTS OBLIGATIONS REGARDING PREGNANCY AND CHILDCARE
Anti-Discrimination Legislation seeks to address and remove unfair disadvantages that result from the fact that a person belongs to a group identified under the Code. Childbearing benefits society as a whole and therefore women should not be disadvantaged as a result of being pregnant. The Supreme Court of Canada has recognized that the financial and social burdens and the cost associated with having children should not rest entirely on women.
Unfortunately, discrimination against women because of pregnancy continues to be practiced in our society, particularly in the context of employment. Many women who are or may become pregnant, do not know how their employers will respond to the employee's pregnancy. This often results in these women experiencing considerable stress and even fear that they will lose their jobs.
Women who are pregnant may experience varying forms and degrees of discrimination, depending on what other characteristics form part of their personal identity or status in society. For example, pregnant women who receive social assistance, or who are young, single, involved in a same-sex relationship, or who have a disability, are often more vulnerable and therefore more likely to be subject to discriminatory behaviour than pregnant women who are in a traditional family structure.
The Ontario Human Rights Code prohibits discrimination because of sex. Section 10(2) of the Code establishes that the right to equal treatment without discrimination because of sex includes the right to equal treatment because a woman is, was or may become pregnant or because she has had a baby.
Pregnancy includes the process from conception up to the period following childbirth and includes the post-delivery period. The term Apregnancy takes into account all of the special needs and circumstances of a pregnant woman and recognizes that the experiences will differ.
Special needs can be related to circumstances arising from the following:
- Miscarriage;
- Abortion;
- Complications because of pregnancy or childbirth;
- Conditions which result directly or indirectly from an abortion/miscarriage; and
- Recovery from childbirth.
Subject to bona fide (genuine) requirements, denying or restricting employment opportunities in hiring or transferring a woman because she is, was or may become pregnant or because she has had a baby is a violation of the Code.
Certain work-related practices may constitute discrimination such as:
- Limiting or withholding employment opportunities or withholding training, regardless of work performance or years of service;
- Not assigning a pregnant woman to a major project or team projects;
- A manager being overly critical of her work;
- Docking a pregnant woman's time for using the washroom more frequently;
- Terminating her with or without notice;
- Unwanted transfers; and
- Denying sick leave benefits.
Most of the complaints filed with the Ontario Human Rights Commission by women alleging discrimination because of pregnancy are related to the workplace. The right to equal treatment without discrimination because of sex or pregnancy, however, also extends to accommodation (housing, etc.), services, goods and facilities, contracts and membership and trade unions.
Employee benefit plans or employment practices that result in disadvantage because of pregnancy constitute discrimination under the Code on the basis of sex and pregnancy.
The Divisional Court has held that sick leave benefits should be available, for health related reasons, to a woman who has recently given birth where she has chosen to go on maternity leave under the Employment Standards Act.
Employers should be extremely sensitive to the Human Rights Code provisions in dealing with pregnant employees. Any and all decision should be made with care and with regard to the rights and obligations that exist under the Code.
III. DUTY TO ACCOMMODATE
In some circumstances, differential treatment of a woman because she is, was or may become pregnant is warranted, if it is demonstrated that not being pregnant is a bona fide occupational requirement.
To be considered a bona fide occupational requirement under the legislation, the requirement, qualification or factor must be imposed in good faith and be reasonable from an objective standpoint.
Caselaw imposes a very high standard before accepting a defence of bona fide occupational requirement.
In order for a requirement to be reasonable and bona fide in the circumstances, it must be demonstrated that the needs of a particular group protected under the Code cannot be accommodated short of Aundue hardship.
Under the Code, employers must demonstrate that a particular form of accommodation would lead to accessive costs or health and safety concerns in order the justify undue hardship.
The Supreme Court of Canada has held that discrimination against woman because of pregnancy includes not only discriminatory action, but also the failure to accommodate the special needs of persons who fall into this category.
Special needs during the pre-natal and post-natal period can be accommodated short of undue hardship which takes into consideration costs, health and safety factors, etc. in a variety of ways including:
- Temporary relocation to another workstation or location or re-assignment of duties;
- Providing a flexible work schedule to accommodate medical appointments, including treatment for infertility;
- Assignment to alternate or light duties;
- Allowing for breaks as necessary;
- Providing a supportive environment for a woman who is breastfeeding. Accommodation may mean allowing the caregiver to bring the baby into the workplace and providing a feeding area that assures a degree of privacy; and
- Allowing time off for special health needs because of a difficult delivery, miscarriage or abortion.
An employer cannot arbitrarily decide that a pregnant woman should take a leave of absence as an accommodation measure without considering other options for dealing with a situation requiring accommodation, in consultation with the affected employee.
Both the employer and the employee share the responsibility for determining the most appropriate form of accommodation that a given set of circumstances may require.
If a pregnant employee is advised by her doctor that she can no longer work in a particular position, she is responsible for clearly informing the employer of her need for accommodation and of the accommodation required.
Once the employer is aware what accommodation is required, the employer has a duty to take steps to accommodate the special needs and circumstances of the pregnant employee short of undue hardship.
Prepared by David Thompson
Commentary is of a general nature and is not intended as legal advice. Specific advice should be sought with respect to each specific case.
© Scarfone Hawkins LLP