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With the Federal Government’s proposed extension to parental leave in the 2017 Federal Budget, we thought it would be useful to provide a summary of Ontario employees’ existing rights regarding parental leave. Stay tuned for our upcoming blog where we unpack the proposed changes to parental leave and what that might mean to you as an employee or as an employer.

If you have been terminated during parental leave, it is important to understand your rights because you will not be entitled to regular Employment Insurance benefits after your leave. This policy has been contended at Parliament Hill, but there is no word on any upcoming changes. Therefore, you need to make sure you are strongly represented if your employer terminates your employment before, during, or after a parental leave.

Pregnancy and parental leave under Ontario’s Employment Standards Act, and corresponding rights from Employment Insurance

Here are some quick facts:

  • The Act provides for a leave of absence without pay for pregnant employees, employees who have recently adopted a child, and employees who have obtained permanent custody of a child;
  • A pregnant mother (whether biological or surrogate) can receive 15 weeks of maternity benefits and can start taking this leave as early as eight weeks (the Federal Budget proposes to change this to 12 weeks) before the expected date of birth of the child;
  • Currently, adoptive, biological, or legally recognized parents are entitled to a maximum of 35 weeks of parental benefits (the Budget proposes to extend this to 61 weeks).
  • An employee is entitled to pregnancy and/or parental leave if they have been working for the same employer at least 13 weeks before the due date or before the start of the parental leave;
  • An employer is entitled to receive written notice at least two weeks before the day the pregnancy leave is to begin, and may request a medical certificate specifying the expected birth date.

Employers’ responsibilities

  • Employers do not have to pay wages to someone who is on pregnancy or parental leave;
  • Employers do, however, have to maintain the employee’s participation in certain benefit plans and continue the employee’s credit for length of employment, length of service, and seniority;
  • If the wages associated with the employee’s position rose while that employee was on leave, the employer must pay them the higher wage when they return from leave;
  • Employers must offer the employee who took pregnancy and/or parental leave the same job that they had before the leave. Alternatively, an employer can offer a comparable job if the employee’s old job no longer exists.

What discrimination might I face with respect to parental leave?

a. Termination

It is a common misconception that new parents cannot be terminated while on parental leave. This is untrue. An employer can terminate an employee who is on leave if it is for a legitimate business reason that is completely unrelated to the fact that the employee took parental leave. However, if there is a comparable position within the company, the employer must provide the employee on leave with that position. Failure to do so can be considered a breach of the Employment Standards Act and also a breach of the Ontario Human Rights Code.

b. Mistreatment due to parental leave

An employee, specifically a new father, may also face mistreatment from employers and colleagues, which could lead to a constructive dismissal situation. This mistreatment could be in the form of a demotion, a change in responsibilities or a reduction in compensation.

An employee may also be constructively dismissed if their employer and co-workers have created a toxic workplace when the employee returns. A toxic workplace can include inappropriate comments, humiliation, or threats in the workplace. If an employer has created an intolerable work environment, the employee may have access to constructive dismissal damages.

c. Discriminatory policies

An employee can face discrimination through workplace leave polices. For example, in 2008 the Canadian Human Rights Tribunal held that a federal government policy on pregnancy leave discriminated against women by refusing to credit employees with the time spent on pregnancy or parental leave toward the three years of cumulative continuous service required to become a permanent employee.

More questions?

If you have been mistreated by your employer or co-workers because of your choice to take pregnancy or parental leave, you should speak to one of our Employment Law lawyers.

Similarity, if you are an employer who wants to provide a fair and reasonable leave policy to your employees, or if you fear your leave policies may be discriminatory, you should also speak to one of our experienced lawyers.

Contact our Employment Law Group today.


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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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