Part I - Maternity and Parental
As a Canadian employee, you have the ability to take a job-protected leave from work when you become a parent, whether for the first time or the third. Employment laws throughout Canada allow individuals to take time off during pregnancy, upon the birth of their child, or, in the case of adoption, upon the child joining the family.
Below we outline some of the basic facts regarding maternity and parental leaves. We recommend you review this blog post in conjunction with our post, Let's Talk about LEAVES – At a Glance Chart – Maternity and Parental Leaves.
Federally Regulated Employees
If your employment falls under the federal category, your statutory leave protections fall under the Canada Labor Code (CLC). Unlike some of the provincial statutes, the CLC provides maternity and parental related leave entitlements to all employees, regardless of how long they have worked for the employer. You may be required to provide appropriate medical documentation, however, on the request of your employer:
Maternity-related Reassignment and Leave:
Alternatively, an employee who is pregnant or nursing may take an unpaid leave of absence during the period from the beginning of their pregnancy to the 24 th week following birth, if they provide the employer with a medical certificate indicating that they cannot work and the duration of that inability.
Maternity-related reassignment leave is distinct from an employee's entitlement to maternity and parental leave.
Maternity Leave:
Parental Leave:
If one employee takes maternity and parental leave under the CLC, the total amount of leave is capped at 78 weeks. Parents who share maternity and parental leave under the CLC can take a combined total of 86 weeks of leave.
Provincially Regulated Employees
If your employment falls under provincial category, your statutory maternity and parental leave protections are governed by your province's employment standards laws. The maximum amount of combined maternity and parental leave varies from province, ranging from 1 year to approximately 1.5 years.
Like federally-regulated employees, there are conditions you have to meet to fall under these leave protections:
Benefits
During your leave, your employer has to continue all of the employee benefits and perks you ordinarily enjoy, whether or not required by law. This includes things such as statutory entitlements such as continued accrual of vacation and seniority. It also includes other health and dental benefits, employee discounts, gym membership, and such perks, that are not required by law.
That being said, you may opt out. For example, you may not wish to pay for the employee portion of the benefit premiums while you are on leave, and as a result, wish to have your participation in the benefits suspended until you return.
Apart from these types of benefits and entitlement accrual, unless your employer offers a top up plan, your maternity and parental leave is unpaid. You may turn to EI benefits if you qualify.
What if you do not qualify?
As noted above, you may have to meet certain conditions before qualifying for maternity and parental leave under either the Canada Labour Code or the provincial employment standards laws. The conditions vary from jurisdiction to jurisdiction, ranging from 13 weeks of continuous employment with the same employer, to a full year.
What if you do not meet the conditions? Does that mean you do not get a maternity or parental leave?
You likely will be able to find room under human rights laws that are different, but related, to take time off through your pregnancy or to care for your child. You may not be able to enjoy the same extent of rights, however, and your entitlement to a job-protected leave is not guaranteed. Nonetheless, you may be able to take a leave despite not meeting the conditions.
Job protection?
We know these are job-protected leaves, but what exactly does that mean?
It simply means an employee cannot be treated differently or adversely simply because the employee is taking or has taken a statutory leave. Apart from that, there is no guarantee that you will go back to the exact same job as before. If the job legitimately disappears due to restructuring, for example, you may be placed in a comparable position. If your employer is letting you take a leave despite not meeting the required conditions under the applicable legislation, there may be limitations on the protections afforded to you.
Different or adverse treatment includes:
If you find yourself in any of the above situations, do not wait. Call to speak with your employment lawyer.