Parental leave pregnancy leave

The Difference Between Pregnancy Leave and Parental Leave?

Expecting a child can be the most exciting and stressful period of a person’s life. Support during this time is crucial, particularly from an employer. The law gives pregnant employees certain time off to manage their pregnancy. The law also provides rights to non-birthing parents. The objective is to ensure that employees do not have to quit their jobs due to pregnancy. 

What obligations do employers have to pregnant employees and new parents? What protections are available to pregnant employees? When can a parent take leave to care for their newborn? What can an employee do if their rights to pregnancy or parental leave are not respected in the workplace?

The article below will answer these questions, discuss the scope of pregnancy leave and parental leave, and explain what an employee can do if their rights are violated. 

Statutory Protections for Pregnant Employees

There are statutory protections available to allow pregnant employees to continue working during their pregnancy and afterward.

Under the Ontario Human Rights Code (the “Code“), an employer has a duty to offer reasonable accommodations to pregnant employees, such as time off to attend doctor’s appointments, modification of duties, and protection from adverse treatment at the workplace due to pregnancy. 

Employees also have other statutory rights which help them manage their pregnancy better. These include the right to pregnancy leave, parental leave, maternity benefits, and reinstatement after pregnancy-related leave. 

These statutory protections provide job security to pregnant employees and allow them to participate meaningfully in the workforce if they choose to. If you are expecting and want to know more about your legal rights in the workplace, it is best to contact an employment and Human Rights lawyer. 

When Can Employees Seek Pregnancy Leave?

The Ontario Employment Standards Act, 2000  (the “ESA”) allows eligible employees to take unpaid time off work for pregnancy-related reasons. The ESA allows pregnant employees to take up to seventeen weeks of unpaid time off work. 

In certain situations, pregnancy leave may be extended. For example, when the employee took the statutory seventeen weeks off but is yet to give birth, then pregnancy leave will end when the employee gives birth.

Pregnant employees have the right to take pregnancy leave irrespective of whether they work full-time, part-time, or on a permanent or term contract. However, they must have started their job at least thirteen weeks before the expected delivery date. 

While employees are not entitled to regular wages during their pregnancy leave, they can apply for maternity benefits. Under the Employment Insurance Act, employees on pregnancy leave can claim maternity benefits equal to fifty-five percent of their weekly pay up to a maximum of six hundred and thirty-eight dollars for up to fifteen weeks.

Additionally, employees who have a miscarriage or stillbirth less than seventeen weeks before their due date are eligible to take pregnancy leave. In such cases, the latest date for the commencement of the pregnancy leave is the date of miscarriage or stillbirth. Pregnancy leave may continue until seventeen weeks after the leave began or twelve weeks after the stillbirth or miscarriage, whichever is later.

What are the Parental Leave Entitlements of Employees in Ontario?

In Ontario, new parents can take parental leave of up to sixty-three weeks to care for their newborn or newly welcomed child, with an exception. The parental leave entitlement of a birth mother is capped at sixty-one weeks if they took pregnancy leave.

The definition of a parent includes:

  • a birth parent;
  • an adoptive parent, irrespective of whether the adoption has been finalized; and
  • a person in a relationship of some permanence with the child’s parent who plans on treating the child, including same-sex couples. 

Generally, a birth mother must take parental leave as soon as their pregnancy leave ends. However, sometimes, the baby does not come into the birth mother’s care immediately after birth. For instance, when the baby faces some post-birth complications and is still in the hospital’s care at the end of pregnancy leave. 

In such cases, employees can choose to return to work at the end of the pregnancy leave and start parental leave when the baby comes into their care. 

An employee who returns to work after pregnancy leave can take parental leave within seventy-eight weeks of birth or the date the baby first came home from the hospital. Other parents must commence their parental leave within seventy-eight weeks after the child’s birth or when the child first came into their care, custody, or control. Parental leave must begin within this time frame, but it does not need to be completed during this period.

When to Apply for Pregnancy Leave and Parental Leave

Employees must give their employer two weeks’ written notice before commencing pregnancy leave. A pregnant employee must provide a certificate from a medical practitioner mentioning the baby’s expected delivery date if the employer requests it.

Sometimes a pregnant employee must stop working earlier than expected. In that case, they have two weeks after they stopped working to give the employer written notice of the day the pregnancy leave commenced or will commence.  

An employee does not have to begin pregnancy leave at the time of stopping work if it was due to an illness or complication caused by the pregnancy. An employee can choose to treat their time off as sick leave and commence pregnancy leave later. However, their pregnancy leave cannot start later than the earlier of the birth date or due date. The employee has two weeks after stopping work to give the employer written notice of the date the pregnancy leave will begin.

If the employer requests it, the pregnant employee must submit a medical certificate mentioning:

  • the baby’s expected delivery date; and
  • stating that the employee could not perform their job duties due to pregnancy-related complications.

Employees must also give their employer two weeks’ written notice before beginning parental leave. When submitting the written notice, the employee should inform the employer about the duration of the parental leave. Otherwise, the employer may assume that the employee will be on leave for the full sixty-three or sixty-one weeks.

Sometimes an employee may cease working earlier due to childbirth or the child coming into the employee’s care earlier than expected. In these cases, if the employee plans to take parental leave, they have two weeks to give written notice to their employer after stopping work.

What To Do If An Employer Does Not Respect Parental or Pregnancy Leave Rights 

Employers who fail to abide by the statutory protections for parental and pregnancy leave open themselves to potential damages and legal liabilities. 

Under the Code, an employee’s parental and pregnancy leave must be accommodated to the point of undue hardship. The employee must also not be subjected to disadvantageous treatment by an employer at least in part due to their paternal obligations or pregnancy. 

An employer’s failure to reinstate an employee into a position comparable to the one they enjoyed prior to their parental or pregnancy leave may constitute a demotion. In addition to discrimination under the Code, this could entitle an employee to severance pay through a constructive dismissal claim. 

In most cases, an employee and employer should cooperate to ensure the employee is accommodated in the workplace in connection to their parental or pregnancy leave. Where the employer fails to do so, it is typically best for the employee to make a written complaint to their employer about the discrimination they are facing. 

If an employer refuses to investigate or address an employee’s Human Rights complaint, the next step is to speak with an experienced employment and Human Rights lawyer. They can help you determine what next steps to take and what legal options are available. 

An employment and Human Rights lawyer can help you attempt to negotiate a resolution with your employer or represent you in a relevant legal proceeding. 

A case regarding only violations of the Code can be pursued through a Human Rights Application with the Human Rights Tribunal of Ontario (the “Tribunal”). An employee could seek monetary damages like lost wages, general damages, and non-monetary remedies at the Tribunal. Alternatively, if an employee can also make a case of constructive dismissal, they can sue their employer in civil court for severance pay and Human Rights damages. 

It is prudent to consult with an experienced employment and Human Rights lawyer if you are an employee who wants legal advice about taking a pregnancy or parental leave, the next steps for your current leave, or what legal remedies are available to you against your employer relating to your pregnancy or parental leave rights. Every case is different and may require a tailored approach that helps you get the results you want out of a dispute with your employer. 

Conclusion

Pregnancy leave and parental leave enable employees to take prolonged absences from work without fearing job loss. An employee may take pregnancy leave before the baby’s delivery after giving two weeks’ written notice. After the baby’s delivery or welcoming the child for the first time, a new parent can take parental leave.

While only pregnant employees can take pregnancy leave, any new parent can take parental leave. Further, pregnancy leave is generally capped at seventeen weeks. In contrast, eligible employees can take up to sixty-one or sixty-three weeks of job-protected parental leave. 

If an employer does not respect an employee’s workplace rights relating to parental or pregnancy leave, they may owe the employee damages. An experienced employment and Human Rights lawyer can help employers and employees determine their legal rights and obligations, negotiate resolutions to related disputes, and navigate legal procedures to achieve the results they want. 

Contact Us

If you are an employee or an employer with questions about pregnancy or parental leaves, our team of experienced workplace lawyers at Achkar Law can help. Contact us by phone toll-free at 1 (800) 771-7882 or email us at [email protected], and we will be happy to assist. 

If you are a small or medium-sized company looking for full-service support with the same-day response, visit our CLO Program page for our strategic solutions.

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