This blog is the first installment of a four-part series by Sultan Lawyers focused on employment issues specific to pregnancy and parental leave in Ontario.
Canada provides among the most generous workplace protections globally for those on parental or pregnancy leave. While entitlements are mostly determined at the provincial level, in general parents benefit from a combined period of between 12 and 18 months to both prepare for and care for a newborn. This applies to all parents of the child.
Protection for expecting and new parents can be found with both employment standards and human rights legislation. Ontario’s Employment Standards Act, for example, provides for leave which is split between parental and pregnancy leave, for a potential maximum period of 18 months. The Ontario Human Rights Code, for its part, provides protection to parents of newborns through a bar on discrimination and/or harassment in relation to sex and family status.
Employees on leave (or who are considering taking a leave) often are, understandably, concerned about the security of their employment. As a result, we receive many questions about the protection that employees have from being fired while on pregnancy or parental leave. The following summarizes some important information for employees concerned about the security of their role while on parental leave.
What employment protections do I receive as a new or expecting parent?
Employers are severely restricted in their ability to terminate an employee who is on parental leave. This is because employees are entitled to return to their job following completion of the leave. While they can be replaced during the time that they are off of work, they must be re-offered their position as soon as they announce their return to the workplace.
If an employer does not re-integrate an employee into the workplace, this can result in a finding that the employer has violated both the employment standards and the human rights legislation in the province/territory where the employee worked.
The protection is so strong that employers are prohibited from engaging in any differential treatment because of an employee’s intention to become pregnant, actual pregnancy, or because they are on a leave in relation to pregnancy or becoming a parent. Further, where an employee is dismissed, employers will need to prove both that termination was in no way related to the leave and that the employer made reasonable efforts to rehire the employee.
Are there any circumstances in which my employer can dismiss me while I’m on leave?
Yes. There are some exceptions to the rule requiring reinstatement to work while on parental or pregnancy leave. This includes if the position no longer exists as a result of restructuring.
If an employer, for example, has reorganized its business such that the pre-leave role no longer exists, then the employer is not required to provide the pre-leave role. The employer is, however, expected to make reasonable efforts to seek out comparable alternative roles.
Even if an employer proves that they were legally entitled to terminate an employee’s employment while on leave, they must still provide the employee with a termination package to financially support them while finding alternative employment. The size of the package will depend on several factors, including the employee’s age and years of service. In short, you can be entitled to significant protection even in the event of termination.
Can I sue my employer to get my job back?
In short, yes. If your employer did not properly reinstate you to your pre-leave role, or otherwise has treated you in a discriminatory fashion, then you may have a valid claim. This claim may come in the form of an employment standards complaint and/or a human rights application.
Assuming that an employee succeeds in their claim, they may be entitled to a range of remedies, including reinstatement, compensation for lost wages during the period in which the employee is not working, human rights damages, in addition to other rewards.
If you have any questions relating to pregnancy or parental leave and/or if you feel that your employer did not fulfil their duties to respect your rights in relation to a leave of absence relating to the birth of a child, or if you have been fired or dismissed and want to ensure you are protected from wrongful dismissal, contact Toronto employment lawyers Sultan Lawyers at 416-214-5111 or here.
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