An employer can layoff an employee while they are on maternity leave. The reality is that employers restructure, eliminate positions, and reduce their workforce, and sometimes those decisions land on someone who is away on leave. In Ontario, the law does not make that impossible.
Whether it is illegal depends on the reason for the dismissal. A genuine business restructuring that would have eliminated your role regardless of your leave is legally distinct from a dismissal that just happens while you are away and the position quietly gets filled once you are gone. The legal outcome turns on that distinction.
If you have been laid off while on maternity leave, the question to focus on is not just whether the layoff was real, but whether it was lawful. Those are not always the same thing.
What Happens If You Are Laid Off While on Maternity Leave
Ontario’s Employment Standards Act (“ESA”) gives you the right to return to the same position you held before your leave. If that position no longer exists, your employer is required to reinstate you to a comparable role with no reduction in pay, seniority, or benefits. That is a legal obligation.
If your employer claims that your role was eliminated, the burden is on them to show the restructuring was real. A reorganization that happens to affect only the person on maternity leave, or that resolves itself once the leave ends, is going to attract scrutiny.
In some cases, what gets framed as a layoff can actually be a constructive dismissal. That happens when the changes to your employment are substantial enough that they effectively end the job you had, even without anyone saying the word termination. Being told your position is gone and offered something materially worse on your return can meet that threshold. If it does, you may have the right to treat the employment relationship as ended and pursue compensation.
One more thing worth knowing is that a layoff notice delivered during your leave does not pause the leave. You legally remain on leave, and your ESA rights continue to apply for the duration.
What Are Your Rights During Maternity Leave
Under the ESA, maternity leave runs up to 17 weeks, with parental leave extending up to 63 weeks beyond that. During that entire period, your employer cannot penalize or terminate you because you took leave. If you are concerned about dismissal during a protected leave, you may find it helpful to read more about whether you can be fired while on maternity or parental leave. Your job is protected, your benefits must continue, and your seniority keeps accumulating. When the leave ends, you are entitled to come back.
The Ontario Human Rights Code adds another dimension. Taking maternity leave is tied to sex as a protected ground, which means an employer who acts against you because you exercised that right may face a human rights complaint on top of any ESA or civil claim. Employees who are dismissed while pregnant or on leave are sometimes entitled to additional compensation beyond a standard wrongful dismissal award.
If you are approaching the end of your leave and your employer is suggesting your original role is unavailable, the duty to accommodate may also come into play. Employers are legally required to accommodate employees to the point of undue hardship, and that can extend to how and when a return to work is structured.
When Is a Layoff During Maternity Leave Considered Discrimination
A layoff is discriminatory when your leave was a factor in the decision, even if it was not the only one. The motivation does not need to be spelled out. In practice, the timing of the decision often becomes part of that analysis. A layoff that happens shortly after you begin your leave, or just before you are expected to return, can raise questions about whether the decision was truly independent of your absence. This does not automatically make it unlawful, but it does shift the focus onto your employer to explain what changed and why the decision was made when it was. When the explanation does not hold up, the timing itself can become evidence that your leave played a role.
A few things tend to reveal whether the dismissal during leave is legal. Was your position eliminated but a similar role posted not long after? Were you the only person let go while colleagues in comparable roles kept their jobs? Did anyone signal frustration about your leave before it began? Was the role you were offered on your return from leave reduced in responsibility or pay? Each of those details matters, and a pattern across several of them can turn what looks like a business decision into something quite different legally.
There is also the question of what your employer could have done but chose not to. If comparable positions existed and were never offered to you, that omission can be part of both a discrimination and a constructive dismissal analysis. Employers are expected to make genuine efforts to meet their reinstatement obligations.
Ontario’s ESA also sets limits on how long a temporary layoff can last before it becomes a deemed termination, which would trigger your entitlement to termination pay and potentially common law reasonable notice. Federally regulated employees fall under the Canada Labour Code rather than the ESA, but similar protections apply.
What Should You Do If You Are Laid Off While on Maternity Leave
If you have received a layoff notice, a severance offer, or any document asking for your signature, we strongly recommend that you do not sign it right away. Once you sign a release, you generally give up your right to pursue further claims. Take time to understand what is being offered and whether it actually reflects what you are owed.
Hold on to everything. Emails, texts, letters, voicemails, anything your employer sent you during or before the leave. If there were conversations about your position or your return, write down what was said while it is still fresh. That kind of documentation can be important later, particularly if you need to establish a timeline or challenge your employer’s version of events. Your employment contract and any original offer letter are worth digging out too, since they can affect how severance is calculated.
Getting legal advice early makes a real difference. An employment lawyer can tell you whether the layoff was genuinely lawful, whether you have a wrongful dismissal claim, and whether human rights protections apply in a way that increases what you may be entitled to. In Ontario, you generally have two years from the date of termination to bring a wrongful dismissal claim. That can feel like there is no urgency, but waiting usually works against you.
If your situation involves overlapping leave periods or a subsequent pregnancy, you may also find it useful to read about the protections available to employees who become pregnant during an existing maternity leave.
Legal Disclaimer: This post is general information only. Nothing in it constitutes legal advice, and nothing here applies to your specific situation. Every case turns on its own facts, and the only way we can advise you on yours is through a proper consultation and engagement. Reading this post does not create a lawyer-client relationship with Sultan Lawyers. If you have questions about your situation, contact us directly.
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