Maternity and Parental Leave

Yes. Employees continue to accrue vacation time while on protected leave of absence, including pregnancy and parental leave. However, it’s important to note that the specific terms of vacation accrual and pay may be outlined in the employer’s vacation policy and employment contract. Therefore, it’s important to review your employment policy regarding vacation pay during parental leave.

Generally, no.

In Ontario, the Employment Standards Act, 2000 (ESA) and the Human Rights Code provide protections and rights for employees returning to work after pregnancy or parental leave. Here’s an overview:

Right to Reinstatement:

Employees who take pregnancy or parental leave are generally entitled under the ESA to either:

• The same role they had before the leave began, or
• A comparable role if their former position no longer exists.

Comparable Role:

An employer can offer a comparable role, which might involve changes in job duties, if the employee’s previous role was eliminated. However, this does not allow for significant alterations that would amount to a constructive dismissal.

Potential Claims:

If an employee experiences significant changes to the terms of their employment, then they may be entitled to bring a claim for constructive dismissal.

•  Constructive Dismissal: If changes in job duties result in significantly fewer or downgraded duties, a reduction in pay, or demotion in seniority, the employee may have a claim for constructive dismissal.

• Human Rights Violations: If the employee can link the changes in their job duties to the fact that they took leave, they may also be entitled to damages related to a violation of their human rights.

Filing a Complaint:

If there are concerns that the employer has not complied with the ESA, including by failing to return them to a comparable role, employees may file a complaint with the Ministry of Labour.

While it may be surprising to hear this, the answer is yes. Having said this, although you may be fired during your maternity leave, the fact that you are on maternity leave cannot be a reason/factor for the employer in firing you. This means that an employer cannot use the excuse that they, for example, terminated for performance reasons, but that the decision was a combination of this and the fact that you were, for example, about to begin maternity leave or are on leave. What this means is that it is illegal for an employer to use any of the following to be a factor (even 1%) in making a decision to terminate a person’s employment: pregnancy (of them or their partner), a plan to go onto maternity leave, being on leave, or having returned from leave.

It is unlawful for employers to terminate employees on the basis of pregnancy. If this happens to you, you should immediately consult a qualified employment lawyer. They can review the facts and advise you on your legal options. Additionally, they can explain how applicable laws protect pregnant women from discrimination in the workplace. Depending on the specifics of your case, they may recommend filing a human rights complaint or initiating other legal proceedings such as mediation or arbitration.

Technically, yes. An employee’s employment may be terminated while on parental leave, however, employers are severely restricted in this regard, specifically because employees are entitled to return to their role following the completion of the parental leave.

While there are some exceptions to this rule, including where the position no longer exists as a result of legitimate business restructuring, an employer is expected to make reasonable efforts to seek out a comparable and alternative role.

Where an employer is able to establish a legal termination of employment, the employee will still be entitled to a termination package to support the employee while seeking alternative employment, which will generally be accessible following the conclusion of the employee’s parental leave.

Yes. Employers are permitted to offer supplemental or “top-up” payments to an employee’s maternity and parental benefits if the following two (2) conditions are met:

• The sum of the Employment Insurance benefit and the supplemental payment do not exceed the employee’s normal weekly earnings; and
• The supplemental payment is not used to reduce other accumulated employment benefits, including sick leave, unused vacation and/or severance pay.

In Ontario, employees who have commenced a maternity or parental leave may be entitled to Employment Insurance (“EI”) maternity and parental benefits if they have accumulated at least 600 hours of insurable employment during the qualifying period and their normal weekly earnings have been reduced by more than 40% because of pregnancy or the need to care for a newborn or newly adopted child(ren).

EI maternity benefits are available to biological mothers who cannot work because they are pregnant or have recently given birth for up to a maximum of 15 weeks.

EI parental benefits also are available to parents caring for a newborn or newly adopted child(ren) and can be received as a standard or extended benefit. For example, the standard parental benefit is available for up to a maximum of 35 weeks and provides a weekly benefit rate of 55% of the individual parent’s average weekly insurable earnings. By comparison, the extended parental benefit is available for up to a maximum of 61 weeks (or in some cases 63 weeks) and provides a weekly benefit rate of 33% of the individual parent’s average weekly insurable earnings.

All new parents have the right to take parental leave. Birth mothers who take pregnancy leave are entitled to up to 61 weeks’ leave. Birth mothers who do not take pregnancy leave and all other new parents are entitled to up to 63 weeks’ parental leave.

Employers are not required to pay their employees while they are on maternity leave. However, some employers may choose to ‘top-up’ an employee’s salary during their leave. Employers, unless they’re bound by a collective agreement or contract, do not have to offer a ‘top-up’ plan. Through the Employment Insurance Act, eligible employees may be entitled to employment insurance (“EI”) benefits to cover their entire maternity leave period (including parental and/or pregnancy). Employees who are on maternity leave are also entitled to continue participation in certain benefit plans (i.e. pension plans, medical plans etc.). Employees who are on maternity leave also continue to earn credit for length of service/seniority in their position.

Employees are entitled to pregnancy leave under the Employment Standards Act, 2000 for each pregnancy, and there is no specific requirement that an employee return to work between pregnancies.

Therefore, at law, an employee is permitted to begin their second parental leave immediately following the return date from their initial parental leave, as long as they provide at least two (2) weeks’ notice of their intention to take the pregnancy leave.

Further, while employees are entitled to take a second parental leave, they may not qualify for Employment Insurance benefits if they have not accumulated at least 600 hours of insurable employment during the qualifying period.

Employees on maternity or parental leave have several rights, including:

• The right to reinstatement;
• The right to be free from penalty;
• The right to continue to participate in benefit plans; and
• The right to earn credit for tenure and seniority.

You could receive 55% of your earnings, up to a maximum of $650 a week. Parental benefits are available to the parents of a newborn or newly adopted child. There is standard parental leave and extended parental leave.

For one parent, standard parental leave is available for up to 35 weeks, with a benefit rate of 55%, or a weekly maximum of $650.00.

For one parent, extended parental leave is available for up to 61 weeks, with a benefit rate of 33%, or a weekly maximum of $390.00.

Pursuant to the Ontario Human Rights Code (the “Code”), an employer has the duty to accommodate their pregnant employees to the point of undue hardship. While every individual will have unique needs, some examples of reasonable accommodation include, but are not limited to, the following:

• Shift changes/flexible hours to accommodate for symptoms such as morning sickness;
• Modified duties to reduce or eliminate physically strenuous tasks;
• Frequent short breaks or extra washroom breaks;
• Time off for pregnancy-related appointments;
• Preferred parking;
• Uniform alterations; and/or
• Leave, or leave extension as long as it is consistent with existing leave provisions.

In Ontario, if the baby is born before the due date, employees are entitled to begin pregnancy leave on the day the baby is born.

Parental leave is a benefit available to all provincially regulated employees, which provides a leave of absence from work following the birth of a newborn or the adoption of a child.

In Ontario, both parents are eligible for parental leave, whereas only the birth mother is entitled to pregnancy leave.

In addition, parental leave is available for 63 weeks, and pregnancy leave for 17 weeks.

In Ontario, pregnancy leave can last a maximum of 17 weeks for most employees. However, if an employee is still pregnant after the full 17 weeks of leave, she may continue pregnancy leave until the birth of the child. If the employee has a live birth, pregnancy leave will then end on the date of birth, and parental leave can commence.

If an employee has a miscarriage or stillbirth within the 17-week period before her due date, the employee will be entitled to the continuation of pregnancy leave until the latter of:

• 17 weeks after the pregnancy leave began; or
• 12 weeks after the stillbirth or miscarriage.

As a result, the pregnancy leave of an employee who has a stillbirth or miscarriage can exceed the 17-week maximum, up to a maximum of 29 weeks.

Employees who intend to resign during or at the end of a parental leave are required to give their employer at least four (4) weeks’ written notice of their resignation.

In Ontario, an employee is required to give their employer a minimum of two (2) weeks written notice before commencing their application for pregnancy leave. Further, if requested, the employee must also provide the employer with a certificate from a medical practitioner stating the baby’s due date.

Notice can be given retroactively if the employee must stop working due to complications caused by pregnancy. In this case, the employee has two (2) weeks after the stoppage of work to provide written notice to the employer of the date that pregnancy leave began.

It is important to note that failing to give the required notice does not preclude an employee from the right to a pregnancy leave.

In Ontario, the earliest an employee can begin pregnancy leave is generally 17 weeks prior to the employee’s due date.

Where the employee has a live birth more than 17 weeks before the due date, the employee will be entitled to commence her pregnancy leave on the date of the birth.