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Pregnancy Leave (Maternity Leave) Basic Entitlement

Pregnant employees are entitled to take up to 17 weeks of unpaid leave of absence (in some cases it may be longer) if they have been employed (but not necessarily actively working) for at least 13 weeks prior to their due date. The leave must be taken all at once.

Reinstatement

Upon returning from pregnancy or parental leave, the employer must reinstate the employee to the position they most recently held, if it still exists, or to a comparable position, if it does not.

If an employer does not respect the right to reinstatement, then this can result in a finding of a violation of employment standards and/or related human rights legislation.

Employment Insurance Benefits

Under the Employment Insurance Act, maternity or parental benefits are available to individuals who are pregnant, have recently given birth, are adopting a child, or are caring for a newborn.

An employee on leave may be eligible to receive provincial employment insurance (EI) benefits if they have worked for at least 600 hours during the qualifying period, have paid EI premiums and their normal weekly earnings are reduced by more than 40%. Employees should always contact an employment insurance representative to review their entitlement to employment insurance prior to commencing their leave.

Benefits Received from the Employer

Employers have no obligation to pay employees while they are on a pregnancy leave but during their leave, the employee must be considered continuously employed for the calculation of vacation entitlements, wage increases, termination entitlements, pension, medical and other benefits ordinarily received. The employer must also continue to pay benefit premiums during pregnancy leave—except in situations where the employee pays part of the benefit premium and advises the employer, in writing, that they are choosing not to pay their portion during the leave.

Back-to-Back Parental Leaves

Employees are entitled to pregnancy leave under the Employment Standards Act (the “ESA”) for each pregnancy. In other words, there is no absolute requirement under the ESA that an employee return to work between pregnancies.

Therefore, an employee may, for example, begin their second parental leave immediately following the return date from their initial parental leave. In this case, the employee will continue to be entitled to reinstatement and benefits, as detailed above.

Employees should keep in mind, however, that under the ESA they are required to provide at least two weeks’ notice of their intention to take pregnancy leave. In addition, a pregnancy leave cannot generally be taken any earlier than 17 weeks before the employee’s due date.

Further, while an employee may be entitled to take a second parental leave, they may not qualify for employment insurance benefits for the second leave if they fail to meet the qualifications set out above, including the requirement to have worked for at least 600 hours for the employer prior to commencing the leave.

If you have questions or feel that your rights have been violated regarding the above, contact an experienced Toronto employment or human rights lawyer at Sultan Lawyers. Please contact Majella Lahert by telephone at 416-214-5111 or by email at mlahert@sultanlawyers.com.


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