Understanding Pregnancy and Parental Leave Policies in Ontario

As an employment law firm, we often receive questions about pregnancy and parental leave rights in Ontario. This blog intends to help employees and employers understand their rights and obligations under Ontario’s Employment Standards Act, 2000 (“ESA”) and the federal Employment Insurance Act.

Pregnancy Leave in Ontario

Eligibility and Duration

In Ontario, pregnant employees are entitled to take up to 17 weeks of unpaid pregnancy leave, provided they started working for their employer at least 13 weeks before their due date. This leave can begin as early as 17 weeks before the due date and must end no later than 17 weeks after the actual birth date.

Notice Requirements

Employees must provide their employer with at least two weeks’ written notice before starting their pregnancy leave. If pregnancy-related complications arise, the employee can start their leave earlier with as much notice as possible.

Parental Leave in Ontario

Eligibility and Duration

Parental leave is available to new parents, including birth parents, adoptive parents, and those in a relationship of some permanence with a parent who intends to treat the child as their own. To be eligible, employees must have worked for their employer for at least 13 weeks.

The duration of parental leave varies:

• Birth mothers who take pregnancy leave can take up to 61 weeks of parental leave.
• All other new parents can take up to 63 weeks of parental leave.

Timing of Parental Leave

Parental leave must begin no later than 78 weeks after the child is born or comes into the parent’s care. For birth mothers, parental leave typically starts immediately after pregnancy leave ends unless the baby hasn’t come into their care by that time.

Maximum Leave 

Notice Requirements

Employees must provide their employer with at least two weeks’ written notice before starting parental leave. If an employee wishes to change the start date of their leave, they must provide another two weeks’ notice before the new start date.

Job Protection and Benefits Continuation

Both pregnancy and parental leaves are job-protected in Ontario. This means that employers should:

• Reinstate the employee to their previous position upon return or to a comparable position if their original job no longer exists.
• Continue the employee’s participation in benefit plans, including pension, life insurance, and extended health and dental plans.
• Count the leave period towards the employee’s length of employment, length of service, and seniority.

Employment Insurance (EI) Benefits

While pregnancy and parental leaves are unpaid under the ESA, eligible employees may qualify for Employment Insurance (“EI”) benefits during their leave.

Maternity Benefits

Eligible employees can receive up to 15 weeks of EI maternity benefits. These benefits can start as early as 12 weeks before the expected date of birth and end as late as 17 weeks after the actual date of birth.

Parental Benefits

EI offers two options for parental benefits:

1. Standard Parental Benefits: Up to 40 weeks of benefits, paid at 55% of average insurable weekly earnings, up to a maximum of $650 per week (as of 2024). One parent cannot receive more than 35 weeks of standard benefits.
2. Extended Parental Benefits: Up to 69 weeks of benefits, paid at 33% of average insurable weekly earnings, up to a maximum of $390 per week (as of 2024). One parent cannot receive more than 61 weeks of extended benefits.

Parents can choose to share these benefits. When sharing, couples may be eligible for an additional 5 weeks of standard benefits or 8 weeks of extended benefits.

Employer Top-Ups and Supplementary Unemployment Benefit (SUB) Plans

Some employers offer “top-up” payments to supplement EI benefits during pregnancy and parental leave. These are not required by law but can be a valuable employee benefit. Employers can register a Supplementary Unemployment Benefit (SUB) plan with Service Canada, which allows them to top up an employee’s EI benefits without affecting the employee’s EI entitlement.

Rights and Protections During Leave

Employees on pregnancy or parental leave have several important rights:

1. Protection from dismissal or penalty related to taking leave.
2. The right to continue participating in workplace benefit plans.
3. The right to earn credits toward length of employment, length of service, and seniority.
4. The right to return to their job or a comparable position.

Challenges and Legal Considerations

Despite clear legal protections, employees sometimes face challenges when taking pregnancy or parental leave. Common issues include:

• Discrimination in hiring or promotion due to pregnancy or the possibility of taking leave.
• Pressure to return to work early or take a shorter leave.
• Changes to job duties or demotion upon return from leave.
• Termination shortly before or after leave.

If an employee experiences these issues, they may have grounds for a human rights complaint or a wrongful dismissal claim. Understanding their rights and obligations is crucial for both employees and employers to avoid potential legal disputes.

Best Practices for Employers

To ensure compliance with the law and foster a supportive work environment, employers should:

• Develop clear, written policies on pregnancy and parental leave.
• Train managers and HR personnel on these policies and relevant laws.
• Communicate openly with employees about their leave plans and return-to-work arrangements.
• Ensure proper documentation of leave requests and approvals.
• Maintain contact with employees on leave, respecting their communication preferences.
• Plan for coverage of job duties during the employee’s absence.
• Prepare for the employee’s return, including any necessary accommodations.

Takeaway

Understanding Ontario’s pregnancy and parental leave policies is crucial for both employees and employers. These leaves, which can extend up to 17 weeks for pregnancy and 61-63 weeks for parental leave, provide essential protections for new parents, allowing them to balance work responsibilities with family demands. While the legal framework is comprehensive, covering aspects like job protection and benefit continuation, navigating these policies can be complex.

As employment lawyers, we encourage employees to know their rights, including eligibility criteria and notice requirements, and employers to implement fair and supportive policies. If you have questions about your personal situation or need guidance on implementing leave policies, don’t hesitate to seek legal advice. For personalized assistance, consider contacting employment law experts, Sultan Lawyers, online or by telephone at 416-214-5111.