In Ontario, new parents are able to take time off work to care for a newborn or newly welcomed child. There are typically two types of leaves that employees are able to take prior to, or once their child arrives, they are (1) maternity leave (also referred to as pregnancy leave), and (2) parental leave. This article covers the difference between pregnancy and parental leave, the applicable laws that govern these unpaid leaves of absence, and some common questions.
What is Maternity Leave?
Pregnancy leave in Ontario is a leave of absence available to birth mothers who have worked for their employer for 13 weeks at some point. Pregnancy leave is a protected job leave under the Employment Standards Act, 2000, which allows birth mothers to take off 17 weeks, which must be taken before the baby is born.
Birthmothers who take pregnancy leave can apply for employment insurance (“EI”) from the Government of Canada, where they are able to receive 55% of their income for up to 15 weeks.
What is Parental Leave?
Parental leave in Ontario is available to new parents. “Parents” for the purposes of the Employment Standards Act, and the Employment Insurance Act – which governs the EI benefits, includes the following:
- A birth mother
- Non-birth mother
- A father
- A person with whom a child is place for adoption, or
- A person who is in a relationship of some permanence with a parent of a child and who intends to treat the child as their own.
New parents are able to take a protected leave of absence for up to 63 weeks each, however, if the birth mother took a pregnancy leave, her parental leave will cap at 61 weeks.
Do I get to Keep My Workplace Benefits While on Maternity or Parental Leave?
Employees who go on maternity or parental leave are entitled to continue to earn all workplace benefits. Depending on the company, this may include entitlements to health and dental benefits, vacation, raises, as well as seniority within the company.
Can My Employer Fire Me After Returning from Maternity or Parental Leave?
Employers are able to terminate their employees at any time, even without cause, as long as they provide the appropriate notice or pay in lieu. However, if an employee returns from a maternity or parental leave and are dismissed for a reason that is related to the leave, the employee may have grounds for a claim of discrimination on the grounds of family status, as per the Ontario Human Rights Code.
It is important to note that Ontario courts have awarded higher damages in situations where an employee was wrongfully dismissed, where the dismissal was motivated by a maternity or parental leave.
At times, companies undergo a restructuring of their internal structure and available positions. If this occurs while an employee is on maternity or parental leave, employers have an obligation to reinstate the employee to a comparable position. If this is not possible, the employer is able to dismiss the employee, as long as they provide the necessary termination pay entitlements.
If you are an employer facing a human rights claim, or an employee who believes you have been wrongfully dismissed or discriminated against, 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@example.com and we would be happy to assist.
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