Whether you are an employer or employee we encourage you to read this blog. This blog seeks to provide some basic information so that the reader can better understand what obligations exist with respect to maternity and parental leave in the workplace. First, we will look at entitlements that exist for individuals who take either maternity and / or parental leave. Secondly, we will set out what should happen when the individual returns to his or her workplace after maternity and parental leave. And finally, we will also provide some information on how Zeilikman Law as
employment lawyers can assist either employers or employees to effectively navigate these issues in the workplace.

Maternity and Parental Leave Entitlements

In Ontario, pregnancy leave or maternity leave is a period of time when a pregnant woman is entitled to take unpaid time off from her employment before and after childbirth. This leave is set
out in Ontario’s Employment Standards Act, 2000 (“ESA”) and allows pregnant employees the right to take leave of up to 17 weeks, or longer in certain situations, of unpaid time off work and can start up to 13 weeks before the expected date of birth. 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.

Parental leave is different from maternity leave as it allows both parents (including adoptive parents) to take unpaid time off from their employment following the birth of the child. Birth mothers who have taken maternity leave are entitled to take up to 61 weeks of parental leave and all other parents are entitled to take up to 63 weeks of parental leave.

To be clear, maternity leave entitlements are not part of parental leave entitlements. An employee may take both leaves in one instance but only one in another.

Finally, while both maternity and parental leave are unpaid, eligible employees can receive Employment Insurance (EI) benefits.

What happens when the employee returns to work from maternity leave or parental leave?

Eligible employees have a right not to have their job be in jeopardy if they decide that they will take a maternity leave or parental leave.

Therefore, the employer should provide the employee with the same job that the employee had before they went on maternity or parental leave when they return to work. This means that the employee should come back to the same job with the same title, work hours, workplace location, benefits, responsibilities and remuneration.

Further, if the employee’s job is no longer available, for instance if it was eliminated due to a restructuring of the employer’s business, the employer must offer the employee a comparable
position. This means that the employee should come back to a very similar job that they had before they went on leave with comparable duties, responsibilities and remuneration…etc.
If the terms of the employee’s employment are changed in a negative way, the employee may be able to claim constructive dismissal. This means that the employee may bring a civil claim against the employer for constructive dismissal including common law and statutory damages for termination pay and potentially severance pay, other general damages as well as punitive damages and legal costs.

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.

How can Zeilikman Law help?

Maternity, pregnancy and parental leave are integral in the preservation of employment for parents or potential parents. It is very important to learn how to address these issues whether you are an employee or employer. Navigating these issues can be complex and worrying, so it is best to approach an employment lawyer for advice on how to tackle these issues.

The challenge that lies at the centre of these issues is the duty of the employer to reinstate the employee to their former role or, if the role does not exist, a comparable role. Both employers and employees need specific advice to help them figure out what appropriate steps to take to reach a positive resolution.

Zeilikman Law has helped both employers and employees deal with these issues in the workplace by providing legal advice, preparing various policies, correspondence or other documentations, helping to negotiate a resolution to these issues, etc.