Employees are statutorily entitled to take time off work as a leave of absence for certain periods due to certain circumstances. The employer must abide by a legal leave of absence as those specified leaves are protected by Ontario’s Employment Standards Act (“ESA”). Two common types of protected leaves that employees take are pregnancy leave and parental leave. Maternity leave is a term used by many that may encompass either pregnancy or parental leave.
If you would like learn more about statutorily protected leaves of absence please review our blog Need to Take a Leave From Work? Know Your Ontario Rights.
What are the statutory entitlements to pregnancy leave, parental leave and maternity leave?
In each instance the employee must be employed in a job that is covered by the ESA. So, for example, if the employee is a federal employee, their employment would not be under the ESA but under the Canada Labour Code, 1985.
Further, in most instances, these leaves are unpaid by the employer. However, to be eligible the employee does not have to be employed in a fulltime basis and the employee remains entitled to the leave if they are employed in a parttime capacity or on a fixed-term contract basis.
| Leave Type | Qualifications | Duration |
| Pregnancy Leave | The employee must be pregnant. The employee must have started employment at least 13 weeks before the date the baby is expected to be born. An employee may begin pregnancy leave no earlier than the earlier of, (a) the day that is 17 weeks before her due date; and (b) the day on which she gives birth. An employee wishing to take pregnancy leave shall give the employer, (a) written notice at least two weeks before the day the leave is to begin; and (b) if the employer requests it, a certificate from a legally qualified medical practitioner stating the due date. | Generally, the employee is entitled to up to 17 weeks of pregnancy leave, but that duration may be longer depending on certain circumstances. |
| Parental Leave | The employee must be a parent to a child born following the birth of the child or the coming of the child into the employee’s custody, care and control for the first time. The employee must have started employment at least 13 weeks before the date the child is expected to be born. An employee may begin parental leave no later than 52 weeks after the day the child is born or comes into the employee’s custody, care and control for the first time. An employee wishing to take parental leave shall give the employer written notice at least two weeks before the day the leave is to begin. | Employees who are new parents are entitled to take parental leave of up to 61 or 63 weeks of parental leave. |
What happens when the employee returns to work from maternity leave, pregnancy leave or parental leave?
The employee should return to the same job they had before they went on leave. This means that the employee should come back to the same job with the same title, work hours, workplace location, benefits, responsibilities and remuneration.
If the employee comes back to a job that is substantially different to what they had before they went on leave, they may be able to claim constructive dismissal. Once the claim for constructive dismissal has been made, the employee will then generally claim termination and severance pay. Further, and depending on the circumstances, the employee may also be entitled to punitive and / or general damages as well.
We have other blogs and articles about constructive dismissal. For more information please review:
- What You Need to Know About Constructive Dismissal
- What Is Constructive Dismissal? A Guide for Employees
- Can My Employer Make Changes to My Job Without My Consent?
What happens if the employee is fired while on maternity leave, pregnancy leave or parental leave?
Generally, an employer can fire or terminate an employee while that employee is on maternity leave, pregnancy leave or parental leave as long the leave was not a factor in the decision to terminate the employee. However, even if the reason for the dismissal is not due to the leave, the employer still owes the dismissed employee notice of termination or pay in lieu of that notice. If the employer fails to do so, the employee may have a claim for wrongful dismissal.
An employer is not allowed to terminate the employee because that employee went on maternity leave, pregnancy leave or parental leave in Ontario. To do so is unlawful in Ontario and may carry with it serious consequences to the employer. Among other things, an employer who terminates an employee may be liable termination and severance pay, as well as damages under Ontario’s 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?
Zeilikman Law helps both employers and employees deal with employment law issues around job-protected statutory leaves of absence by providing legal advice, preparing various policies, correspondence or other documentation, helping to negotiate a resolution to these issues, litigation management, etc.
For more information specifically about maternity leave, parental leave or pregnancy leave, please review:
- Maternity and Parental Leave and the Workplace
- I am planning on going on parental leave in the near future. What do I need to know?
Contact Zeilikman Law today at (905) 417-2227 or online here to get your questions answered about this topic and other employment law issues.
