Maternity Leave | Your Top 10 Questions Answered

by Samfiru Tumarkin


Wednesday, November 15th, 2017 at 1:44 pm


Having a baby is supposed to be one of the most exciting events in one’s life, and thankfully, our employment laws allow new parents to take significant time off work for parental and maternity leave in Ontario. At the same time, the news of becoming pregnant brings with it a plethora of concerns for soon-to-be parents.

maternity leave, parental leave, pregnant

 

Samfiru Tumarkin LLP has put together a list of the top 10 questions about the rights of women who are pregnant, or about to take or are on maternity leave. This list takes into account changes to maternity leave, made by the federal government, that come into effect Dec. 3, 2017.

 

1. Can My Boss Fire Me Because I Am Pregnant?

Your employer cannot fire you simply because you are pregnant and plan on taking a maternity or pregnancy leave. To do so would be a clear violation of the Ontario Human Rights Code.

If there is any casual connection at all between your termination and the pregnancy, you will likely have grounds for additional damages on top of your regular severance entitlements when you file a wrongful dismissal claim against your employer. If you decide to pursue your workplace rights, you should do so with an experienced Employment Lawyer.

Employers must be very careful when firing pregnant employees. They are still allowed to terminate an employee while pregnant, but only if the firing has nothing to do with the fact that the employee is pregnant.

2. What Happens If I am Too Sick to Work While Pregnant?

You have the right to take time off while you are pregnant, if you are found to be medically unable to work. Miscarriages and other pregnancy related illnesses apply as well, as suggested in a recent case that went before the Human Rights Tribunal of Ontario. This right to fair treatment and protection from termination also extends to surrogate mothers.

You also have the option to seek workplace accommodations if your regular duties pose a risk to your pregnancy. You can request modified duties, temporary flex hours, and time off to attend valid medical appointments.

Your employer must accommodate your requests and medical situation. They must also refrain from making your work environment more difficult, in an effort to make you quit. If your employer does engage in making your life more difficult during this time, you can rightfully pursue constructive dismissal, at which point you should contact us for assistance.

3. How Much Time Can I Take for a Maternity Leave?

The Ontario Employment Standards Act allows pregnant employees to take up to 17 weeks of unpaid pregnancy leave. After that, birth mothers are entitled to 35 weeks of maternity leave, while fathers or adoptive mothers are allowed to take off up to 37 weeks total. Once started, your leave must be taken all at once.

The ESA also allows new mothers or new fathers to take unpaid parental leaves from work within 1 year of the child being born or coming into their care.

4. Who Is Allowed to Take a Pregnancy Leave?

Birth mothers, including surrogate mothers, are allowed to take a pregnancy leave.

5. Who Is Allowed to Take a Parental Leave?

The birth mother and all other new parents have access to parental leave when the baby is born. In order to qualify for parental leave, you must have started working for your employer for at least 13 weeks prior to the start date of your leave. Full-time, part-time and contract employees are eligible.

6. Is My Employer Required to Pay Me While on a Maternity Leave?

Because the leave is considered unpaid time off, your employer is not required to pay you during a maternity or parental leave. However, some employers may offer top-up payments to employees, and you should discuss this with your employer.

The Federal Government does provide maternity Federal Employment Insurance (EI) benefits. These are made available to eligible individuals in order to provide some form of income support.

The Federal Government is making key changes, effective December 3, 2017, to parental and maternity leave in Canada. The changes will give new parents the option of using either 12 months or 18 months of combined maternity and parental leave.

12 Month Maternity Leave

  • Birth moms and surrogates eligible for 15 weeks of maternity benefits. EI will provide 55% of average weekly salary (up to $543 per week).
  • Women will now be able to claim maternity leave benefit 12 weeks prior to due date, rather than 8 weeks.
  • After 15 weeks, a parent or caregiver can take 35 weeks of parental leave, at 55% of average weekly salary (up to $543 per week).

18 Month Maternity Leave (New Rules)

  • 15 weeks of maternity benefits at 55% of average weekly salary (up to $543 per week).
  • Maternity leave benefits can start 12 weeks prior to due date, rather than 8 weeks.
  • After the 15 weeks, a parent or caregiver can then take 61 weeks of parental leave, at 33% of average weekly salary (up to $326 per week).

7. Can I Keep my Health Benefits While on Parental or Maternity Leave?

Yes, you are most definitely entitled to all earned workplace benefits. This may include vacation, raises, and seniority.

8. Can My Employer Fire Me While I Am on a Parental or Maternity Leave?

Your employer can fire you for a list of reasons, but you cannot be fired for being on a parental or maternity leave. The general rule is that you are entitled to be returned to the same position you held at the time you began your leave. Employees on leave are afforded extra protections with respect to termination, under the ESA and the Ontario Human Rights Code. Employers are not allowed to penalize employees for their decision to get pregnant and take a parental leave.

A common scenario exists where the employer is happy with the new employee hired to fill in for you during your maternity leave, and would like to replace you with that person. However, protections mean that the employer can’t fire you simply because they want to replace you with another employee.

An exception that rule does exist. If your employer cannot return you to your original position (due to valid restructuring), they must reinstate you to a comparable position. If that isn’t possible, your employer would be required to terminate your employment, and provide you with full severance entitlements.

 

9. My Employer Has Been Giving Me a Hard Time Since My Return from Maternity Leave. What Are My Options?

We have seen many cases where employers make the work environment difficult for employees returning from a parental or maternity leave. Employers may be of the opinion that your temporary fill-in was a better worker, that you are not as productive as before your leave, or a great many other reasons.

Employers may subject you to unfair performance reviews, increased workload, workplace harassment, a demotion, and more. If you find that the atmosphere at your workplace has become more hostile towards you, and you feel that your employer is building a case against you, we recommend you contact us. Harassment is illegal.

10. Can My Employer Fire Me Shortly After My Return from Maternity Leave?

If you are terminated shortly after returning to work from a maternity leave, we need to assess whether your termination was related to the fact that you recently took time off work. If that is the case, then you may have a claim for discrimination on the ground of family status under the Human Rights Code, as well as for additional damages against your employer.

Courts have awarded employees a higher amount of wrongful dismissal damages if termination was motivated by a recent maternity leave, as implied by a recent case.

The employer cannot make fundamental changes to your position when you return from maternity leave. If they do, you are not required to accept the changes, and would very likely have a case for constructive dismissal against the employer, triggering your wrongful dismissal entitlements.

@stlawyers has put together a list of the Top 10 Questions about parental and maternity leave in Ontario. Click To Tweet

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