Having a baby is supposed to be one of the most exciting events in one’s life, and thankfully, our employment laws (for both provincially and federally regulated employees) 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 it with a plethora of concerns for soon-to-be parents. Some common questions we often receive regarding rights, expectations and entitlements before and after maternity leaves in the employment law context are outlined below.
Federal Changes to Parental Leave Take Effect Dec. 8, 2017!
Q: Can my employer terminate me after I announce I am pregnant?
An employer cannot penalize you in any way simply because you are pregnant and plan on taking a pregnancy or parental leave. To do so would be a clear violation of the Ontario Human Rights Code (the “Code”) on the basis of sex and/or family status. If there is any casual connection at all between your termination and the pregnancy, on top of your termination entitlements, you will likely have grounds for additional damages against the employer for breach of the Code, and for bad faith, moral and/or punitive damages, when commencing a wrongful dismissal action against the employer.
Employers must tread a very careful line when it comes to terminating pregnant employees. In short, an employer can terminate you from your employment while pregnant, so long as the termination has nothing to do with the fact that you are pregnant (i.e. the employer’s operations are shutting down). This is a question of fact.
If you are provincially regulated, your employer generally has the ability to let you go from your employment at any time without even having to provide a reason, so long as you are terminated on a ‘without cause’ basis and you are paid your proper termination entitlements. However, when assessing an employee’s common law termination entitlements, our courts have established that pregnancy is an important factor to be considered in determining what an employee’s termination entitlements should be. In these cases, being pregnant when terminated will justify higher common law termination entitlements.
Once you do advise your employer that you are pregnant, your employer is generally required to provide you with reasonable accommodations if the pregnancy is interfering with your ability to adequately carry out your job duties. For instance, if you require more flexible hours as a result of morning sickness, or because commuting to work has become more difficult, you can seek reasonable accommodations. If your employer fails to do so, you should contact an employment lawyer at your earliest.
Q: How much time off am I entitled to take off work for a pregnancy/maternity leave?
The Ontario Employment Standards Act, 2000, as amended (“ESA”) allows pregnant employees to take an unpaid pregnancy leave of up to 17 weeks.
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. To qualify for a maternity leave under the ESA, you must have been working for your employer for at least 13 weeks prior to the date your leave commences. Birth mothers are entitled to 35 weeks of maternity leave, while fathers or adoptive mothers are allowed to take off up to 37 weeks.
Q: Is my employer required to pay me while on a maternity leave?
Employers are 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 with your employer whether it provides any form of top-up payments or additional compensation prior to taking a leave.
The Federal Government (pursuant to the Employment Insurance Act) does provide maternity Employment Insurance (“EI”) benefits to eligible individuals in order to provide some form of income support:
- EI maternity benefits are available to biological mothers for up to a maximum of 15 weeks; and
- EI parental benefits are available to the parents of a newborn or newly-adopted child for up to a maximum of 35 weeks.
Importantly, you do have the right to continue participation in certain benefit plans (i.e. pension plans, medical plans) with your employer. Notably, during the leave you will also continue to earn credit for length of service/seniority in your position.
Q: Can my employer terminate my employment while on a maternity leave?
The general rule is that you are entitled to be returned to the same position you held at the time you commenced your maternity or parental leave. Employees who are on a maternity/parental leave are afforded extra statutory protections with respect to the ability of an employer to terminate them, under both the ESA and Code (and the applicable federal statutes). These statutes act to prevent an employer from penalizing employees as a result of the decision to get pregnant and take a parental leave, and the employer is restricted from acting in accordance with whatever its best interests may be regarding the ability to hire and fire employees on a parental leave.
One common scenario is where the employer is very satisfied with the employee it hired to fill in for you during your leave, and perhaps the employer may prefer your replacement to replace you permanently. However, because of the statutory protections, the employer could not decide to let you go simply because it wants to fill your position with the replacement employee.
A very narrow exception to this rule would be if the employer simply not in fact return you to your prior position – for instance, the position no longer exists due to valid restructuring or downsizing at the company (i.e. not simply giving your position a new job title and saying it no longer exists). If the employer could not return you to the same position you held at the time of commencing your leave, the employer would have the obligation to reinstate you to a comparable position.
Only if it was impossible to return you to your prior position or to a comparable position for legitimate reasons (totally unrelated to the fact that you took a leave), would your employer then be entitled to terminate you and provide you with your legal termination entitlements. However, our courts have consistently held that an employee’s reasonable notice period for the purposes of termination entitlements cannot start to run while the employee is on a maternity leave. The common law reasonable notice period would start to run on the date you were actually scheduled to return from your leave. Any notice provided prior to your return would not count toward your overall reasonable notice period at common law.
This becomes important in cases where the employer may indicate it has a legitimate reason for terminating you, despite the fact you are on a maternity leave. For instance, the employer may provide you with a termination letter months before your scheduled return to work, outlining that your position has been eliminated and you have no position to go back to. However, this action would very likely be a breach of the ESA and the Code. The employer would have had to know that it would not have a position for you prior to your scheduled return date, but the employer’s legal obligation is to asses its ability to return you to your position at the end of your leave.
There would be no way for the employer to know months or even weeks prior to your scheduled return what position would be available for you on your return date. Even if the exact position you were to return to was no longer available, the employer still has a legal duty to find you comparable employment. Accordingly, a legal determination as to whether the employer would have had another comparable position for you to return to could only really be made on your actual return date.
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Q: Can my employer let me go from my position shortly after my return from maternity leave?
In similar regard to being terminated when pregnant, if upon returning to work from maternity leave you are terminated shortly thereafter, what needs to be assessed is whether your termination was in any way related to the fact that you recently took time off work for maternity leave, or for reason that you have to care for a new child. If this is the case, then you may have a claim for discrimination on the ground of family status under the Code, as well as for additional damages against the employer, as discussed above.
Our courts have also awarded employees a higher amount of wrongful dismissal damages if the employee’s termination was motivated by a recent maternity leave. In a recent case, the court justified awarding an employee who was terminated form her employment following a maternity leave a higher than normal notice period when taking into account the employee’s family status. Namely, having been terminated shortly after a return from maternity leave, the employee would experience more financial strain and it would be more difficult for her to find a new job when she was also responsible for caring for her young children.
Further, an employer cannot make fundamental changes to your position (i.e. reduce your work hours or reduce your pay) when you return from your leave. If the employer does make fundamental changes to your position upon your return, you are not required to accept such changes and you would very likely have a case for constructive dismissal against the employer, triggering your wrongful dismissal entitlements.
Overall, pregnant employees and employees who are on a maternity or parental leave, are afforded extra statutory protections when it comes to their employment. Employers must be very precautious when terminating employees in these situations – if there is any casual connection found that the employee was let go for being pregnant or for taking a maternity leave the employer may face significant exposure of being sued.
If you have been wrongfully dismissed while pregnant, during, or following a maternity leave, navigating the best course for enforcing your legal entitlements can be confusing, as it will usually involve breaches of the ESA, the Code and the common law. Further, if you are a federally regulated employee, you will be governed by federal statutes which provide for similar statutory protections. It is best to contact an employment lawyer right away to determine your rights and entitlements and how best to pursue them.
Changes to Parental Leave Benefits on Dec. 3, 2017
The federal government is making key changes, effective Dec. 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 maximum)
- Women will now be able to claim maternity leave benefit 12 weeks prior to due date, rather than 8 weeks.
- After the 15 weeks, a parent/caregiver can then take 35 weeks of parental leave, at 55% of average weekly salary (up to $543 a week)
18 Month Maternity Leave (New Rules)
- 15 weeks of maternity benefits at 55% of average weekly salary (up to $543 per week maximum)
- Maternity leave benefits can start 12 weeks prior to due date, rather than 8 weeks.
- After the 15 weeks, a parent/caregiver can then take 61 weeks of parental leave, at just 33% of average weekly salary (up to a maximum of $326 a week)
Do You Qualify?
- Expectant Canadian parents outside of Quebec should be eligible for this program.
- You can’t switch to the 18-month system if you are already utilizing parental or maternity leave benefits.
- You must amass 600 insurable hours in 52 weeks leading up to the benefit claim.
- Self-employed? You must opt into the federal EI program at least one full year before your claim, earning a minimum of $6,888 in 2016.
- IMPORTANT: This change was made to the Canada Labour Code for federally regulated workplaces (banks, transport companies, telecoms, public service), which covers only 8% of workers. The remaining 92% of employees who aren’t federally regulated will have to wait until their province or territory changes its labour laws.
Extended Leave for Medical Accomodation
Even for employees not covered by these new changes to maternity and parental leave, they may still be entitled to take an extended leave on the grounds of medical accommodation.
For example, someone suffering from severe postpartum depression may need to take an extended medical leave following their pregnancy or parental leave. Just because the Employment Standards Act does not explicitly state this, does not mean that an employee is required to return to work, come hell or high water. Though the employee may not qualify for EI, the company will have an obligation to accommodate and keep the position open, to the point of undue hardship, if medical evidence is produced.
Employers, Take Note!
- Currently, employers are only required to hold positions for individuals on pregnancy or parental leave for 12 months, which will then bump to 18 for federally regulated employers come December 3. If the provinces follow suit with federal legislation, this is going to put further pressure on employers, especially in Ontario with the proposed wage increases happening as well.
- Many employers provide a further benefit to their employees on parental leaves, like top ups of their wages on leave, through internal HR practices. These practices with an 18 month leave would likely have to be amended.
Jennifer Corbett is an associate lawyer with Samfiru Tumarkin’s Labour and Employment Law Practice Group in Toronto, Ontario.