In Ontario employees have the right to take pregnancy leave of up to 17 weeks. The leave will be unpaid unless the employment agreement specifies otherwise. This leave is protected under the Ontario Employment Standards Act, 2000 (“ESA”).
This means that an employee who has taken pregnancy leave and returns to work (typically following a parental leave) within the statutorily prescribed period, must be reinstated to her former job before the leave began. Alternatively, if the job no longer exists, the employee must be reinstated to a comparable job, if her job no longer exists.
An employee must give her employer written notice at least two weeks before beginning her pregnancy leave. An employer may also request a certificate from a medical practitioner, which may include a doctor, a midwife or a nurse practitioner, specifying the baby’s due date.
If the employee goes into labour earlier than expected or if there are complications caused by the pregnancy, the employee will have two weeks to provide her employer with written notice of the day the pregnancy leave began or will begin. This is called “retroactive notice.” An employee likewise can give new written notice to her employer, if the due date has changed; however, such notice has to be given at least two weeks before the original due date. It is important to know, however, that the employee will not lose her right to pregnancy leave even if she fails to give the required notice.
Although an employee may decide to tell her employer when she intends to return to work, she is not required to do so per se. However, if the employee fails to advise her employer of her return to work from pregnancy leave, the employer will assume that the employee is taking the full 17 weeks under the ESA. Importantly, if an employee requires to take longer leave (excluding parental leave) for instance, on medical grounds, etc., in most cases the employer will have an obligation to accommodate her.
Importantly, an employer is not allowed to terminate the employee because of her pregnancy. Pregnancy termination or termination due to pregnancy is unlawful in Ontario and may carry with it serious consequences to the employer. Among other things, an employer who terminates a woman for being pregnant, may be liable for various forms of damages including termination and severance pay, damages under the Ontario Human Rights Code, 1990, as well as moral and punitive damages. The employee may also seek the right to be reinstated with full backpay.
