Maternity and Parental Leave: Current Issues


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Maternity and Parental Leave: Current Issues

  1. 1. Maternity and Parental LeaveCurrent Issues and Common Challenges Maggie Campbell
  2. 2. The Basics• Governed by the Employment Standards Act or the Canada Labour Code• Actually two leaves: pregnancy leave (17 weeks) and parental leave (35 weeks)• ESA: all employees covered are entitled• CLC: employees are only entitled if they worked for at least six months prior to leave• Human Rights: pregnancy covered under “sex discrimination” ground
  3. 3. Benefits and Entitlements• General rule: employment deemed continuous while on leave so the employee’s entitlements remain the same• What is payable: • Vacation pay – regular vacation time and pay accrues while on leave • Termination pay – leave counts as service • Extended health benefits – continue as if the employee is still working• What is not payable: • Benefits tied to active employment, like performance based bonuses, depending on the language in policy • Employer contributions to health or pension plans if the employee chooses not to pay her portion of coverage
  4. 4. Terminations• Employers prohibited from terminating an employee because of pregnancy or leave• Termination of a pregnant employee or an employee on leave can be lawful, provided it is not motivated in whole or part because of the pregnancy or leave• Employer bears the burden – expect intense scrutiny
  5. 5. Notice of Termination• Under the ESA, notice of termination can’t overlap with mat leave, so must be given when leave is over• Common law reasonable notice: • Working notice can’t run concurrently with leave • Payment in lieu can be given while the employee is on leave
  6. 6. Resignation• The employee may state she has no intention of returning to work when the leave is over• Make sure to get resignation in writing• Termination obligations of the employer are discharged• If the employee resigns prior to taking leave, she will not qualify for EI payments
  7. 7. Return to Work – Same/Comparable Position• Must return the employee to the same or comparable position, can’t unilaterally change a condition of employment because of leave• Comparable position: • status, compensation, prestige, duties, working conditions• Condition of employment: • Everything that in any way affects the employment relationship• Changes unrelated to the employee’s absence that would have occurred even if the employee had not gone on leave are ok• Changes can always be made with the consent of the employee
  8. 8. Extending Leave• ESA allows for some extensions: • Up to 6 weeks for pregnancy leave • Up to 5 weeks for parental leave • Need medical support • Father’s parental leave: must start within year of birth but can end after the first year• Consider other health related extensions• No other legal requirement to extend leave• Consider the use of accrued vacation time
  9. 9. Request for Change in Working Conditions• Many employers face requests to make changes following a leave: • part-time work • a different work schedule • the ability to work from home• No legal requirement per se to change conditions of employment• The employer can require the employee to return to the same schedule and working conditions that were in existence before she went on leave
  10. 10. Family Status Discrimination• Possible Human Rights exposure under “family status” ground: • In order to show discrimination, there must be a serious interference with a substantial parental/family duty • Not all circumstances where employment obligations run counter to parental obligations • Distinction between normal and extraordinary family obligations -- be more than just being a parent
  11. 11. Family Status Discrimination• Denying extension of leave because of difficulty in finding suitable childcare is not family status discrimination• When family status may become an issue: • Disabled child • Single parent • Extreme work schedules/hours