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A Private Members Bill, brought by MP Mark Gerretsen (Kingston and the Islands), is seeking to change the rules around Employment Insurance (“EI”) and maternity leave. Bill C-243 was introduced and has already had its first reading in the House of Commons.

According to MP Gerretsen, the purpose of Bill C-243 is to amend the Employment Insurance Act in order to allow a mother to begin using her maternity benefits 15 weeks before the week in which she expects to be off of work, in situations where she is unable to perform the duties of her regular employment and where her employer is unable to modify her job functions or reassign her to another job. The motivation behind the bill was to allow a mother to be off work early if her current job functions may pose a risk to her health.

In 2014, women represented 47.‍3% of the labour force, which was up from 45.‍7% in 1999 and 37.‍1% in 1976. By making maternity leave accessible earlier in certain circumstances, Bill C-243 is attempting to encourage more women to participate in occupations traditionally held by men, including those with potentially hazardous work environments. It is also a response to women’s increasing participation in a number of skilled trades and other non-traditional occupations, including heavy equipment operator, industrial electrician and construction craft labourer. However, due to complications arising from pregnancy and hazards in these types of workforces, women were being adversely affected when they were required to go off work early, and had no access to EI.

This is likely designed to mirror the Safe Maternity Experience program in Quebec, which uses preventive measures to allow pregnant and nursing women to continue working, and allows for preventive withdrawal in cases where an employer cannot reassign an employee or eliminate the hazards to her health.

As Bill C-243 has only progressed through its first reading, and is a Private Members bill, it has a long way to go before it becomes reality. Further, while a good step, it fails to address other issues mothers face while using the EI system. Consider, for example, that in the current system, mothers who use maternity benefits and who return to work, start banking their insurable hours from zero once again. This means if they get sick shortly after they return from maternity leave, or have their employment terminated while on leave or shortly after they return to work (which might be a violation of the Ontario Human Rights Codebut can be justified in the event of a bona fide business restructuring), they may be left with a young child and no EI benefits at all, as they won’t have worked the hours necessary to replenish their entitlements. The fact that maternity benefits, sick benefits, and termination benefits are all pulled from the same pool is a huge problem for mothers.

This is still a bill to keep your eye on, as it is at least a small step in the right direction for mothers who may not be able to work right up until their due date.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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