Parental Leave

Parental leave is designed to allow new parents to take the necessary time off work to care for their newborn children without jeopardizing their careers. The maximum period of leave, applicability to adoption and other issues may vary from province-to-province; therefore, it is important to find out adoption and other issues may vary from province-to-province; therefore, it is important to find out your precise rights in your province of work. This short note will explain those areas of law common throughout Canada, and flag those issues where the law varies from province to province.

Two kinds of leave

New parents are actually entitled to two kinds of leave: “pregnancy leave”, “parental leave” and “sick leave.”

“Pregnancy” leave (also sometimes called “maternity leave”) is designed to provide a period of leave for women who have been pregnant, in order to allow them to recover from the physical consequences of the birthing process. Only pregnant women are eligible for pregnancy leave. All of the provinces and territories provide for a pregnancy leave of 17 weeks, except for Saskatchewan (18 weeks) and Alberta (15 weeks). You may start your pregnancy leave before your due date (anywhere from 11 – 17 weeks prior to your due date, depending upon your province). Finally, in the unfortunate event of a miscarriage and stillbirth, four provinces explicitly state that women are still entitled to pregnancy leave (B.C., Newfoundland, Ontario, and Saskatchewan) – the other provincial statutes, while silent, would likely allow it as well.

“Parental leave” is designed to provide a period of leave for a parent of either gender to allow them to bond with their new child and begin the child-rearing process. Parental leave in Canada ranges from between 35-37 weeks and, in some provinces, may be shared between two parents.

Pay during pregnancy and parental leave

A new parent is not entitled to be paid during his or her pregnancy or parental leave of absence. Some employers have agreed to pay part of an employee’s salary during pregnancy or parental leave, but there is no obligation on the employer to do so. Some provinces (B.C. and Ontario) require the employer to continue paying its share of contributions to health and other benefit plans during pregnancy or parental leave. In other provinces, employees may continue to participate in benefit plans only if they pay the entire cost of the premiums. This may be of some small benefit to employees if the cost of replacement benefits is higher than paying for the employer’s benefit plan.

However, new parents are entitled to Employment Insurance during pregnancy and parental leave. New parents must have worked a minimum of 600 hours of “insurable employment” in the last 52 weeks prior to the claim for benefits. Pregnant women are entitled to 15 weeks of benefits, and parents of either gender are entitled to up to an additional 35 weeks of EI benefits. If you include the two-week waiting period, this means that a new mother is entitled to one full year on EI benefits. As of today, EI will pay 55% of a person’s salary, up to a maximum of $413 per week.

Rights when returning from pregnancy and parental leave

All provinces in Canada prohibit employers from dismissing, laying off, suspending, disciplining or otherwise penalizing employees because they take pregnancy or parental leave. Employers are allowed to dismiss an employee for reasons unrelated to the leave (i.e. a plant shutdown or general downsizing); however, when an employee is dismissed during their leave, it raises a suspicion that the dismissal was related to the leave, and the employer’s actions will be subject to intense scrutiny.

When an employee returns from pregnancy or parental leave, he or she is entitled to return to work. In Ontario, Nova Scotia and Prince Edward Island, an employee is entitled to return to his or her pre-leave position, unless the position no longer exists. In other provinces, the employee must be reinstated to the position they held prior to taking leave, or to a “comparable” position. A “comparable” position is one that involves work of a comparable nature when considering: the location of the job, hours of work, quality of working environment, degree of responsibility, the pay, job security, possibility of advancement, and prestige.

Finally, employees on pregnancy and parental leave may continue to accrue seniority or service during their leave, as well as other employment benefits. The precise rights vary significantly from province to province. Most provinces allow employees to continue to accrue service during their leave periods for pension and other benefit purposes. Some provinces also allow employees to continue to accrue seniority while on leave. Finally, a number of provinces (including Ontario and B.C.) state that employees must be reinstated from their leave at a wage rate that is equal to the rate they would have received had they not been on leave. This means that, in some provinces, employees on leave receive annual increases or even merit increases while on leave.

Christopher Rootham is a labour and employment lawyer at Nelligan O’Brien Payne in Ottawa and can be reached at christopher.rootham@nelligan.ca.