Let's Talk About LEAVES

Part I - Maternity and Parental


As a Canadian employee, you have the ability to take a job-protected leave from work during your pregnancy and thereafter to care for your newborn. Here are some changes to your maternity and parental leaves, and other tidbits to note.


Federally Regulated Employees

If your employment falls under the federal category, your statutory leave protections fall under the Canada Labor Code (CLC).

The sections in the CLC regarding pregnancy and parental leaves are changing. The changes were confirmed on June 22, 2017 as part of the federal government's budgetary considerations under Bill-44. The actual effective date of the changes will be announced by the government.

Once effective, federally governed employees may enjoy up to 1.5 years (or 78 weeks) of pregnancy and parental leave. This is a significant step-up from the previous entitlement of 1 year (or 52 weeks).

To enjoy this, you have to have worked continuously for 6 months. You may also have to provide appropriate medical documents. Other specifics of the CLC protections include the following:

Pregnancy Leave:

  • a pregnant employee may take a pregnancy leave as early as 13 weeks before the expected birth date
  • the pregnant employee giving birth may take a pregnancy leave of 17 weeks
  • the 17-week pregnancy leave may be extended if the birth occurs after the expected due date

Parental Leave:

  • an employee with a new-born child (birth and adoptive) may take up to 63 weeks of parental leave
  • the 63 weeks must fall within the 1.5 year (78 week) period

These leaves may be taken by 1 employee, or, shared by parents who are both employees of the same employer, as long as the total of pregnancy and parental leave taken (by one or both employees) do not exceed the 1.5 years (or 78 weeks).


Provincially Regulated Employees

If your employment falls under provincial category, your statutory maternity and parental leave protections are governed by your province’s employment standards laws.

In most provinces, combined pregnancy and parental leaves are still only up to 1 year (52 weeks) in the most part. For a chart comparing basic elements of maternity and parental leaves in different Canadian provinces, click here.

Like federally-governed employees, there are conditions you have to meet to fall under these leave protections:

  • you have to have worked a certain amount of time continuously for the same employer to qualify
  • once eligible, and if you wish to take a leave, you have to give your employer written notice
  • there are requirements on how much notice you have to give your employer
  • if your condition affects your ability work, your employer may require you to take a leave earlier or longer than you wish
  • you can change when you want your leave to start or end, with notice to your employer

As well, like under the CLC, you will be able to “share” the total year of leave with your partner or spouse, but the total remains 1 year (52 weeks).


Benefits

During your leave, your employer has to continue all of the employee benefits and perks you ordinarily enjoy, whether or not required by law.

This includes things such as statutory entitlements such as continued accrual of vacation and seniority.

It also includes other health and dental benefits, employee discounts, gym membership, and such perks, that are not required by law.

That being said, you may opt out. For example, you may not wish to pay for the employee portion of the benefit premiums while you are on leave, and as a result, wish to have your participation in the benefits suspended until you return.

Apart from these types of benefits and entitlement accrual, unless your employer offers a top up plan, your maternity and parental leave is unpaid. You may turn to EI benefits if you qualify.


What if you do not qualify?

You have to meet certain conditions before qualifying for maternity and parental leave under either the Canada Labour Code or the provincial employment standards laws.

The condition varies from jurisdiction to jurisdiction, ranging from 13 weeks of continuous employment with the same employer, to a full year.

What if you do not meet the condition? Does that mean you do not get a maternity or parental leave?

You likely will be able to find room under human rights laws that are different, but related, to take time off through your pregnancy or to care for your child. You may not be able to enjoy the same extent of rights, however, and your entitlement to a job-protected leave is not guaranteed. Nonetheless, you may be able to take a leave despite not meeting the condition.


"Job Protected?"

We know these are job-protected leaves, but what exactly does that mean?

It simply means an employee cannot be treated differently or adversely simply because the employee is taking or has taken a statutory leave.

Apart from that, there is no guarantee that you will go back to the exact same job as before. If the job legitimately disappears due to restructuring, for example, you may be placed in a comparable position.

If your employer is letting you take a leave despite not meeting the required conditions under the applicable legislation, there may be limitations on the protections afforded to you.

Different or adverse treatment includes:

  • getting fired
  • unwarranted demotion
  • unjustified disciplinary actions or punishment
  • wage reduction
  • stripping of responsibilities
  • noticeable behavioral change
  • and others

If you find yourself in any of the above situations, do not wait. Call to speak with your employment lawyer.


Links:

Let's Talk About Leaves - Part II. Sick Days (Ontario)

Let's Talk About LEAVES - Part III. Health Related Leaves (Ontario)