Your employer can’t fire you because you are on maternity or parental leave. Protected leave is meant to protect your employment while you are away having or caring for a child.
Whether an employer can terminate you during the leave for a completely unrelated reason depends on the employment law that applies where you work. In every jurisdiction, however, pregnancy or maternity leave can’t be used as a reason for the dismissal.
If your employer tells you that your job is gone while you are on leave, don’t sign a release or assume the termination is lawful. The situation can involve protected-leave rights, discrimination, reinstatement, wrongful dismissal and substantial severance compensation.
On This Page:
- 1. Can You Be Fired During Maternity Leave?
- 2. When Is the Termination Illegal?
- 3. What If Your Job Is Gone?
- 4. What If Your Replacement Keeps Your Job?
- 5. Severance & Other Compensation
- 6. What to Do If You’re Fired
Can You Be Fired During Maternity Leave?
Your employer can’t fire you because you are pregnant, because you took maternity or parental leave, or because it would prefer that you return to work sooner.
The rules are less simple when an employer says the termination has nothing to do with the leave.
For example, an employer might say that:
- The entire business is closing
- A department is being eliminated
- A broad restructuring affects employees both on leave and at work
- The employee would have lost the job even if they had never taken leave
What if you’re actually on parental leave?
The same basic job-protection issue applies if your maternity leave has ended and you are now on protected parental leave.
Many employees use “maternity leave” to describe their entire time away after having a baby. Legally, maternity or pregnancy leave and parental leave are separate entitlements.
Both can provide important job protection.
When Is Firing Someone on Maternity Leave Illegal?
A termination is improper when maternity leave, pregnancy or the employee’s exercise of protected leave rights influenced the decision.
Warning signs include an employer:
- Complaining about how long you plan to be away
- Pressuring you to return before your protected leave ends
- Saying your absence has become inconvenient
- Telling you that your replacement is a better fit
- Removing your position only after learning how long your leave will be
- Treating comparable employees who remained at work more favourably
- Ending your employment because you intend to take the full leave available to you
Does maternity leave have to be the only reason?
No. An employer does not avoid a discrimination or protected-leave problem simply because it can point to another reason for the termination.
If maternity leave or pregnancy influenced the decision, that can still be legally significant.
For example, a company might genuinely need to reduce costs but still act improperly if it chooses the employee on maternity leave because management views her absence as inconvenient.
What if the employer says it was a restructuring?
A genuine restructuring does not automatically become illegal simply because you are on maternity leave.
But the word “restructuring” does not prove the dismissal was unrelated to your leave either.
Look at what actually happened:
- Was your entire department affected?
- Was your position genuinely eliminated?
- Are other employees doing substantially the same work?
- Was your maternity-leave replacement retained?
- Were there earlier comments about your leave or return date?
Keep any emails, texts or documents that help answer those questions.
What If Your Job Is Eliminated During Maternity Leave?
Your employer can’t eliminate your job because you took maternity leave.
A genuine business change can still eliminate positions while employees are away. The legal consequences depend on why the position disappeared and the employment standards rules that apply where you work.
In many jurisdictions, employees who complete protected maternity or parental leave are entitled to return to their previous position or a comparable position if the original job genuinely no longer exists.
For the detailed reinstatement rules, see Return to Work After Maternity Leave.
What if the whole company closes?
Maternity leave does not require a business to remain open solely to preserve an employee’s job.
A genuine permanent closure is very different from an employer simply giving your job to someone else.
Even where employment can lawfully end because a business closes, your termination and severance pay rights still need to be assessed.
What if only your department is eliminated?
A genuine department-wide restructuring can be legitimate, but your employer should be able to show that the decision was unrelated to your maternity leave.
If employees performing similar work remain employed or your duties are simply transferred to your replacement, get advice before accepting that your position was truly eliminated.
Can Your Employer Keep Your Maternity Leave Replacement Instead of You?
Your employer can’t take away your job simply because it prefers the person hired to cover your maternity leave.
An employer is allowed to arrange temporary coverage while you are away. It can also keep that employee in another legitimate position.
What it can’t do is use your protected leave as the opportunity to permanently replace you and then say there is no job for you.
What if your replacement is doing your exact job?
If your position still exists and your replacement is still doing it, that is important evidence when the employer says your job disappeared.
Save job postings, organizational announcements, LinkedIn updates or other information showing who is performing your former duties.
Don’t contact or confront the replacement employee. The legal issue is your employer’s decision—not the replacement’s conduct.
Are You Owed Severance If You’re Fired During Maternity Leave?
If your employment is lawfully terminated without cause, you are entitled to the termination compensation required by the law and your employment contract.
For many non-unionized employees, employment standards minimums are not their full entitlement. Common-law severance can be substantially greater.
Your full severance can depend on factors such as:
- Your employment contract
- Your age
- Your position
- Your length of service
- The availability of comparable employment
If you are terminated, don’t sign a release before having your full severance package reviewed—you may be owed as much as 24 months’ pay.
Can you receive more than severance?
Yes. If maternity leave or pregnancy improperly influenced the termination, additional remedies can be available beyond ordinary severance.
Depending on where you work and what happened, these can include:
- Reinstatement
- Lost wages
- Employment standards remedies
- Human rights compensation
- Compensation for injury to dignity
- Wrongful dismissal damages where proper termination compensation was not provided
Does maternity leave automatically increase severance?
No. Being on maternity leave is not an automatic severance multiplier.
However, if the termination violated protected-leave or human rights law, separate compensation can be available in addition to the ordinary severance package.
What Should You Do If You’re Fired During Maternity Leave?
Preserve the evidence and don’t sign anything until you understand both the reason for termination and your full compensation rights.
- Get the termination in writing. Keep the letter and the employer’s explanation for why your job ended.
- Save your leave documents. Keep the notice you gave the employer, your expected return date and any communications about extending or taking parental leave.
- Keep messages about your leave. Save comments about the length of your absence, your replacement or pressure to return early.
- Document what happened to your job. Record whether your position still exists and who is doing your work.
- Keep the severance offer. Don’t assume it includes everything you are legally owed.
- Don’t sign a release. A release can affect both your severance and discrimination claims.
Fired During Maternity Leave Rules Across Canada
All Canadian jurisdictions protect employees from losing their jobs because they take maternity or parental leave.
Fired During Maternity Leave FAQs
Can your employer lay you off during maternity leave?
Your employer can’t select you for layoff because you are on maternity leave. Whether an unrelated layoff can occur during the protected leave depends on the law where you work. Alberta, for example, has specific statutory restrictions that differ from Ontario’s approach.
Can your employer eliminate your position while you’re on leave?
A genuine restructuring can eliminate jobs while employees are away, but maternity leave can’t be the reason your position is selected.
Can your employer replace you permanently?
Your employer can’t permanently deprive you of your job simply because it prefers your maternity-leave replacement. Protected leave normally includes a right to return to your former or a comparable position.
Can you be fired just before you return from maternity leave?
A dismissal immediately before your scheduled return deserves careful review. An employer can’t avoid its maternity-leave obligations simply by waiting until the end of the leave to make a decision based on your absence.
What if you are fired after maternity leave ends?
Your employer still can’t fire you because you took maternity leave. If the problem involves your job, pay, hours or duties when you return, see our guide to returning to work after maternity leave.
Can you still receive EI maternity or parental benefits after being fired?
Losing your job does not automatically end EI maternity or parental benefits. EI benefits are administered separately from your employment-law claim. Report changes in your circumstances to Service Canada and get advice about your termination rights separately.
Get Help If You Were Fired During Maternity Leave
Taking maternity leave does not mean putting your employment rights on hold.
Samfiru Tumarkin LLP helps non-unionized employees challenge maternity-leave terminations, pregnancy discrimination, denied reinstatement and inadequate severance packages.
If your employment ended while you were on maternity or parental leave, our employment lawyers can determine whether the termination was lawful and secure the full severance pay and compensation you are legally entitled to receive.