COVID-19: Pregnancy, Maternity, and Parental Leave Rights

Pregnant women denied access to CERB

While millions of Canadians have applied and been approved for the Canada Emergency Response Benefit (“CERB”) without issue, there is one group of Canadians that has consistently been denied access to this new benefit.

Although they meet all of the eligibility criteria, pregnant women across Canada are being denied payments under the CERB. Instead, they are being forced to prematurely receive EI benefits for maternity leave.

In addition to issues surrounding eligibility for the CERB, the federal government has yet to address how it will prevent a shortage of work hours due to the COVID-19 pandemic from  disqualifying otherwise eligible individuals from receiving EI benefits during their maternity leave and parental leaves.

Are pregnant women eligible to receive the CERB?

If an individual is pregnant, had planned on continuing to work for the next several months, and they meet all of the eligibility criteria for the CERB, they should receive the CERB until they either take maternity leave and receive EI benefits, or until the CERB is no longer available to them.

However, based on the information provided by the numerous women who have contacted us over the last few weeks, all pregnant women are being categorically denied access to the CERB, and this is happening even when the woman is not due to give birth or planning on taking her maternity leave for many months.

We have heard from pregnant women from several provinces who have all had the same experience.

Why pregnant women are being denied CERB

When applying for the CERB, the application form asks the individual if they are pregnant. If the individual responds in the affirmative, their access to the CERB is automatically denied and that person receives EI benefits instead (as if they were already on maternity leave), which in most cases, provides them with less money.

In addition, it shortens the period of time during which pregnant woman can receive EI benefits while taking their actual planned maternity leaves. This will likely result in many women having to spend less time with their newborn and return to work earlier than anticipated because their access to EI benefits after birth will be cut short.

Presumably, the government’s goal in asking applicants to indicate whether they are pregnant, is to avoid a situation where an individual receives both the CERB and EI benefits for maternity leave or parental leave at the same time.

However, while the current configuration may accomplish this goal in certain circumstances, the more significant and wide-reaching consequence is that it prevents all pregnant women from receiving the CERB. While this is likely an unintentional glitch in the system, the federal government must correct this problem immediately.

As of April 24, 2020, the only indication provided by the government is that it recognizes that this issue exists and that it will fix it.

However, we do not have any information about how the government intends on eventually correcting this problem (which could be as simple as re-wording the question to determine when someone intended to take their pregnancy leave) or the approximate timeline.

In the meantime, approximately seven million pregnant women across the country are being denied a benefit, which they are owed, and the only reason is because they are pregnant.

CERB and potential human rights violation

While pregnant women await a fix from the government, they continue to receive less benefits than their non-pregnant peers.

Even if a pregnant woman wished to circumvent this glitch by indicating that she is not pregnant on the CERB application form, making a misrepresentation to the Canadian Revenue Agency (“CRA”) or Service Canada is an unlawful act, which can be punishable by the imposition of a fine or penalty.

This type of adverse, differential treatment, however unintentional, amounts to discrimination, and the women who are being denied the CERB only because they are pregnant could potentially have human rights claims against the government.

If the government does not act quickly to prevent this issue from continuing to happen, and to make those who it has already affected whole, it could face significant liability.

Does the COVID-19 Pandemic Impact Maternity and Parental Leaves?

The COVID-19 pandemic does not impact an employee’s right to take their respective maternity and parental leaves. Maternity and parental leaves and entitlements, which are regulated at the provincial level, remain the same.

However, a related issue, which, again, the federal government is yet to fully address, is the entitlement to collect EI benefits during these leaves.

Prior to a new parent taking a maternity or parental leave, that person must have worked a certain amount of hours in order to be eligible to receive EI benefits while on leave.

There are many expecting parents who are not currently working as a direct result of the COVID-19 pandemic. Because they are not working in the months leading up to their maternity or parental leaves, they may not meet the threshold for the amount of hours required to receive EI benefits.

This would result in many people failing to qualify for EI benefits during maternity or parental leaves when they otherwise would have.

It is presently unclear how the federal government intends to address this issue, but, given how many Canadians this will impact, we expect the government to soon announce how it will ensure that Canadian parents receive the benefits to which they would otherwise be entitled while taking their legally protected leaves.