Maternity Leave in Canada: Explainedachkarlaw-admin
Following the birth or adoption of a child, employees are entitled to take a leave of absence from their workplace, which in Canada is known as maternity leave or pregnancy leave. According to the General Social Survey on Family, 88% of mothers took some sort of leave following the birth or adoption of their child. While they cannot take pregnancy leave, the survey suggests that more fathers are beginning to take some sort of parental leave following the birth or adoption of their child.
As more Canadians in the workforce take advantage of this entitlement, it is crucial for employers and employees to understand the employment protections, rights, and benefits granted by this policy.
Maternal leave entitlement
The Ontario Employment Standards Act, 2000 (ESA) and the Canada Labour Code (CLC) grant maternity leave to employees that are pregnant, with eligible employees being entitled to up to 17 weeks of leave from work or unpaid time off. One restriction to this entitlement is that the 17 weeks of leave must be taken continuously and all at once. For instance, a parent cannot take 7 weeks of maternity leave, return to work, and then claim the remaining 10 weeks of leave. In returning to work prior to the end of the leave period, an employee gives up their right to any outstanding weeks granted under maternity leave.
Employees may qualify for maternity leave if their employment started at least 13 weeks before the expected date of their birth or due date, whether they are part-time or full-time. Employees do not have to work all 13 weeks leading up to the due date to qualify for maternity leave.
In the event that the child is born pre-mature or prior to the expected due date, the employee may still qualify for leave as long as the start of employment and the original due date are separated by a 13-week period. In this regard, the due date and the date of birth are not the same.
Exceptions to the maternity leave entitlement
In the event of a stillbirth or miscarriage, an employee on maternity leave is still entitled to leave from work. However, the period of leave in such circumstances would be the later date between 12 weeks from the stillbirth or 17 weeks from the start of the leave.
While the eligibility for maternity leave is limited to pregnant employees, spouses are also entitled to a leave of absence from their workplace.
Parental leave entitlement
Parental leave is not the same as maternity leave. Whenever possible an employee may claim both maternity and parental leave. If an employee claims maternity leave they are also entitled to an additional 61 weeks of parental leave, whereas all other parents may claim up to 63 weeks of parental leave.
While employees are entitled to unpaid leave from work, they may receive various benefits during this time.
Benefits during leave
Employees that are on leave are unpaid but can still participate in benefit plans under their employers. This may include:
- Contributions to pension plans
- Life insurance plans
- Accidental death compensation
- Extended health coverage
- Dental coverage
The time taken on leave is also credited towards an employee’s length of employment and contributes to an employee’s seniority in a workplace. If eligible, employees on leave can also receive financial assistance under the federal Employment Insurance Act.
Employment insurance benefits
Employees that are on maternity leave may receive 55% of their weekly pay up to a maximum of $638 for 15 weeks. Once the maximum number of weeks has been exhausted, an employee on leave can still continue to receive financial assistance through parental leave benefits.
An employee on leave may choose between a standard or extended parental benefit. Under the standard benefit, an employee on leave is eligible to receive 55% of their weekly pay up to a maximum of $638 for 40 weeks. However, as one parent can only receive up to 35 weeks of parental benefits any remaining weeks must be claimed by the spouse of the employee on leave.
An extended version of this benefit provides for 69 weeks of financial assistance, where the maximum number of weeks that can be claimed by one parent is 61 weeks. While this benefit provides assistance over an extended period, the benefit rate is limited to 33% of an employee’s weekly pay up to a maximum of $383.
In addition to the leave of absence and financial assistance, employees on maternity leave are granted certain rights to ensure job security.
Right to reinstatement
Employees on maternal or parental leave have the right to reinstatement when they return to work. Employers must offer the returning employee either the same job they had prior to taking leave or one that is comparable in the event that the job is no longer available. An employer that refuses to reinstate an employee or reinstates the employee to an inferior role may be faced with a claim for breach of the ESA and/or constructive dismissal.
Protection from reprisal
The ESA protects employees from being penalized by their employers for taking a leave. This protection prohibits employers from:
- Punishing the employee
- Reducing the employee pay
- Intimidating the employee
- Suspending the employee
- Terminating the employee
- Threatening any of these actions or
- Punishing the employee in any other way
Employers that take any of the mentioned actions against an employee for taking leave are in violation of the ESA. Employees who find themselves facing penalties in relation to their leave can file a claim with the Ministry of Labour.
If you are planning to go on or return from a parental or maternity leave, or have an employee who is, the experienced employment and human rights lawyer at Achkar Law can help. Contact us by phone toll-free at 1 (800) 771-7882 or email us at [email protected], as we are happy to assist.
Disclaimer: The goal of this blog is only educational and should not be treated as legal advice which is dependent on specific situations. Please consult with a lawyer before using this information. If you require legal advice for your particular situation, please fill out the contact form, call 1 (800) 771-7882, or email [email protected]