Becoming a parent for the first time is a wonderful, incredible, stressful, exciting time. It’s also the most important time for the development of the parent-child bond. That’s why Ontario employees covered by the Employment Standards Act, who have worked with their current employer for at least 13 weeks, are allowed up to 63 weeks of job-protected, unpaid pregnancy leave to spend with their families.
If you’re unclear about any of the rights you are entitled to while on pregnancy leave or at any other time in the workplace, reach out to an employment and long term disability lawyer. Many offer a free consultation and are passionate about protecting employees in the workplace.
While the rights around parental leave are similar, this post discusses the rights of employees covered by the ESA. Workers who are federally regulated can find their rights and obligations regarding parental leave in the Canada Labour Code.
Pregnancy Leave – The Basics
Under the ESA, the definition of a new parent includes:
- A birth parent.
- An adoptive parent – even before the adoption has been finalized.
- A person in a relationship of some permanence with a parent and who plans on treating the child as their own, including same-sex couples.
As a new parent, you are entitled to the full 63 weeks of leave, regardless of how much time your co-parent takes – as long as you begin the leave within 78 weeks of your baby being born, or the date you received full care, custody and control of your child.
By contrast, only expectant mothers are entitled to pregnancy leave, an additional 17 weeks on top of their parental leave. That 17 week of job-protected leave is a minimum, and their leave can be extended if they are on pregnancy leave and it expires before the baby is born. The extended pregnancy leaves ends when the baby is born.
The earliest a mother can begin her pregnancy leave is 17 weeks before the due date, and the latest she can start her pregnancy leave is on the due date. However, baby trumps all and her pregnancy leave begins on the day her baby is born.
Rights and Obligation of Parents on Pregnancy Leave and Parental Leave
Pregnancy and Parental leave rights and obligations are identical. Regardless of which leave you are on; you must notify your employer at least two weeks before you start your parental leave and four weeks before you return if you are not taking the full 63 weeks. You do not need to notify your employer if you take the full parental leave.
If an employee on pregnancy or parental leave decides to resign from their job, they must give their employer four weeks’ notice unless the terms in their employment contract state otherwise.
Parents on pregnancy and parental leave have a right to reinstatement in the workplace. This means that when you return from leave, you have a right to the same job or a comparable job as the one you had before you left. You are also entitled to the same rate of pay, plus any wage increases you would have earned while on leave.
The exception is if the employer terminates the employee for reasons completely unrelated to the leave, like in the case of mass layoffs. However, if your employment is terminated for any reason before taking leave, while on leave or after returning from leave, contact an employment lawyer right away. If your taking leave had even the slightest influence on the decision to dismiss you, this is a severe violation of your rights.
Other rights employees on pregnancy and parental leave enjoy include:
- The right not to be penalized for taking leave or asking about it.
- The continuing accrual of time of service with your employer. This is a big one as the amount of your vacation, and possibly your severance pay, are impacted
- The option to continue on the employee benefits plan or to opt-out.
EI Maternity and Parental Leave Benefits
Pregnancy and parental leave are unpaid unless your employer provides benefits through a maternity and parental leave policy. However, if you qualify, you can receive 55% of your earnings up to a weekly maximum of $638 through EI’s maternity and parental benefits programs. Some employers’ policies are to have the employee apply for EI Parental benefits and “top-up” those benefits by paying the difference so that they receive their regular payment amount.
Parental benefits can be shared between co-parents to give you more than an individual claimant is allowed. You can also choose to extend the time you receive benefits by taking less money.