Parental Leave: An Employer’s Guide

As an employer, you probably expect that your employees are going to be at work when you need them to be, day in and day out. But what happens when an employee needs to take multiple weeks off? What about multiple months? When employees take maternity leave, or as it’s designated in Ontario, pregnancy and parental leave, that will be the case.

But don’t fear! Ontario law provides a series of clear guidelines for employers and employees to follow when approaching pregnancy and parental leave. You should be prepared to offer your employees pregnancy and parental leave when they ask and be aware of your rights and obligations as their employer.

This article will outline what you need to know about written notice, your maternity and parental leave obligations as an employer, and whether you can terminate someone who is pregnant or on pregnancy or parental leave.

Notice Requirements for Pregnancy and Parental Leave

In general, employees should give two weeks’ written notice before beginning their parental leave, but in situations where the leave must begin suddenly, they will have two weeks after starting the leave to provide retroactively written notice. Employees may need to take pregnancy leave suddenly if they run into complications or health issues. 

If an employee did need to leave work due to complications with pregnancy or for something such as a miscarriage, she may choose to take a mixture of pregnancy leave and sick leave. Either way, she should receive written notice within two weeks. 

Fathers planning to take parental leave should also provide two weeks’ written notice. 

If you need to, you can request a note from a medical practitioner confirming key details such as the baby’s due date or whether a miscarriage occurred. 

If an employee decides not to return to work after their leave is over, they will need to give four weeks’ written notice to their employer, letting them know that they are resigning. 

Also, while an employee must give their employer written notice at least two weeks before starting pregnancy leave, failure to do so does not mean they lose their right to pregnancy or parental leave. 

Employer Responsibilities

Employers do not have to pay their employees regular wages while they are on pregnancy or parental leave. Employees can claim maternity benefits Employment Insurance (EI), which addresses pregnancy and parental benefits while they are off from work. 

You must give your employee the same job or a similar position to that they were in when they left for their pregnancy or parent leave. Employees cannot be penalized in any way for taking a leave. This means that they need to receive the same pay. If they would have received a raise while on leave. They should still receive that raise when they return to work. When they return, an employee’s job no longer exists at the company. They should be given one with comparable pay and position within the company. 

Employees can count their time on leave toward their total time. At the company and consider it counting toward their seniority level there.  You should honour their benefits and total working time by counting the time that they were on leave.

Can I Terminate an Employee Who is Pregnant or On Parental Leave?

Technically, yes. But you should approach with extreme caution. 

The only instance where you as an employer would be able to fire or lay off an employee on pregnancy. Parental leave would be if you were already planning to do so for a reason completely unrelated to their leave. The same goes for when the employee returns from their leave. The reason must be clearly unrelated to the employee taking the leave or being pregnant. A good reason might be the business closing or a layoff of a large number of employees. 

It should be noted that it may be difficult to give someone on leave notice of termination since courts in Canada have previously decided that employees cannot be both on leave and be on notice of termination at the same time. 

Employees cannot be fired for being pregnant, taking pregnancy or parental leave, or otherwise enforcing their rights under the ESA. If they are, they can take their claim to the Human Rights Tribunal of Ontario and argue that they were treated unfairly based on sex, or argue that you as their employer did not follow the standards of the ESA. 

If an employee returns to work to find that their job is no longer available and that there are no similar jobs available for them to take, they may be able to argue that they were constructively dismissed from their position. 

Severance Pay for Employee Termination During or After Parental Leave

Calculating severance can be complex, particularly when dealing with situations like terminating an employee on leave or just returning from leave for a valid reason. In such cases, you can not provide notice since they can not be on notice and on leave simultaneously. Instead, you will need to offer pay in lieu of notice.

For guidance on determining this severance amount, it is advisable to consult an employment lawyer at Achkar Law for the most informed assistance available.

Conclusion

Pregnancy and parental leave are big steps in any employee’s life. They have a big impact on the lives of their employer. It is important to be prepared for what you can expect. To know what your obligations are before things get unnecessarily complicated.

If you have questions about pregnancy and parental leave and how you can best protect yourself and your company. Be sure to reach out to a qualified employment lawyer at Achkar Law. An employment lawyer can help you avoid legal grey areas and help you. The best ways to conduct your business in light of an employee taking a leave.

Need Guidance on Maternity, Parental Leave, or Other Employment Law Matters?

Navigating the complexities of maternity and parental leave can be daunting, not just for expectant parents but also for employers seeking to support their staff while complying with Ontario’s employment laws. At Achkar Law, we understand the intricacies of these legal areas and are dedicated to providing clear, actionable advice to both employees and managers. Whether you’re facing challenges related to leave, workplace accommodations, or any other employment law issue, our team is ready to assist.

Don’t let legal uncertainties affect your peace of mind or workplace harmony. Contact Achkar Law today for a consultation, and let us help you find the best path forward for you and your organization.

Reach out to Achkar Law — We’re here to support you through every employment law challenge.

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