Maternity Leave Under Ontario’s Employment Standards Actachkarlaw-admin
Navigating a pregnancy is both an exciting and busy time. Though naturally, an employee might wonder about how their pregnancy and need to go on maternity leave (aka Mat Leave) or parental leave might impact their job.
In Ontario, the Employment Standards Act, 2000 (“ESA”) regulates many of the minimum standards employers must comply with in their respective workplaces. While not the only legislation that protects pregnant employee’s rights in the workplace, it lays out the bare minimum protections relating to their pregnancy.
As an expectant parent, you may wonder what your entitlements are to maternity leave, what your rights are during mat leave in Ontario, and what you can do if your employer violates your rights.
This article will answer these questions and explain how a lawyer can help you enforce your maternity leave rights.
How to Determine Your Entitlement to Maternity Leave
In Ontario, the ESA entitles most birth-giving employees to approximately 17 weeks of unpaid pregnancy leave, and up to 61 weeks of unpaid parental leave. These leaves can be combined into what is traditionally understood as “maternity leave”.
To qualify for both pregnancy and parental leave, the employee must have worked at least 13 weeks for the same employer. An employee’s status as a full-time or part-time employee is irrelevant in the calculation of these 13 weeks.
Generally speaking, the ESA requires an employee to provide their employer with at least 2 weeks’ written notice of their intention to take pregnancy and parental leave. Employers have the right to request proof of the due date from the doctor or supervising medical practitioner, without unneeded medical details.
An employee may change the date of their pregnancy and/or parental leave by informing their employer in writing at least 2 weeks before the employee’s initial proposed leave commencement date.
Failure to provide an employee sufficient notice for a start date for pregnancy and/or parental leave does not eliminate an employee’s legal rights to either under the ESA.
Upon meeting the requirements outlined above, birth-giving employees are entitled to 17 weeks of pregnancy leave followed by 61 weeks of parental leave. These 17 weeks of pregnancy leave from employment must be continuous. An employee cannot return to work during pregnancy leave, and doing so may constitute a break in the leave prematurely ending it.
Parental leave is time off available to both parents after their baby is born. However, birth-giving parents who have taken pregnancy leave must take parental leave within 78 weeks of their baby’s birth. Parental leave is also available to parents who are adopting a child, or otherwise planning to raise a child as their own.
While determining your entitlement to pregnancy and parental leave protections under the ESA may seem straightforward, there may be exceptions and technicalities to consider. There is no substitute for an employment lawyer’s tailored legal advice for an employee’s unique circumstances in a workplace dispute.
What Are Your Rights During Maternity Leave?
Employers are not obligated to pay an employee’s wages while they are on pregnancy leave and/or parental leave. While on pregnancy and parental leave under the ESA, employees can separately apply to receive pregnancy and parental leave benefits through the federal Employment Insurance (EI) program.
Employees continue to accrue credit towards the length of their service to an employer and their seniority during their pregnancy and parental leaves under the ESA. These are relevant to determine an employee’s entitlements upon the termination of their employment.
Employers must continue an employee’s benefits for the length of an employee’s pregnancy and/or parental leave: including but not limited to:
- Pension plans;
- Life insurance plans;
- Accidental death plans; and
- Health and dental plans.
Employers are required under the ESA to reinstate employees returning from pregnancy and parental leave to the position they occupied under the same terms before commencing leave. In the alternative, an employer must provide the employee with a comparable job being paid at least what they were entitled to before commencing pregnancy or parental leave.
Employers are prohibited from taking action in retaliation against an employee who:
- Took or plans to take a pregnancy or parental leave;
- Is or will become eligible to take a pregnancy or parental leave; and
- Asks questions about pregnancy or parental leave.
Examples of prohibited actions by an employer for the aforementioned reasons include:
- Disciplining an employee;
- Conducting bad faith performance reviews;
- Terminating an employee with or without cause;
- Engaging in workplace harassment that is reasonably known to be unwelcome;
- Creating a toxic work environment for an employee;
- Disentitling an employee to a workplace benefit or otherwise denying them access to workplace opportunities in connection to their pregnancy or parental leave.
Employers who subject an employee to harassment, discrimination or refusal to provide accommodation to the point of undue hardship in connection to an employee’s pregnancy or family-status responsibilities may also be violating the Ontario Human Rights Code (“Code”).
What Can You Do If an Employer Violates your Maternity Leave Rights?
There are a variety of available remedies depending on an employee’s unique circumstances. Some avenues for relief include but are not limited to:
- Filing a complaint for violations of the ESA at the Ontario Ministry of Labour;
- Filing a complaint for violations of the Code at the Human Rights Tribunal of Ontario; and/or
- Suing your employer for wrongful or constructive dismissal.
Each of these legal proceedings has its own pros and cons depending on an employee’s unique circumstances. An employment and Human Rights lawyer can help an employee in this situation by:
- Negotiating a resolution with the employer;
- Drafting appropriate letters and legal documents;
- Providing legal advice and developing an appropriate strategy to resolve your workplace dispute;
- Navigating the relevant legal proceeding; and
- Maximizing the chances of achieving a desired legal outcome.
In Ontario, employees who are covered by the ESA and qualify are entitled to 17 weeks of pregnancy leave, and 61 weeks of parental leave. They are also entitled to reinstatement to the same job position they occupied before commencing leave or a comparable position paying at least the same amount of compensation upon return from pregnancy and/or parental leave.
Employers who violate an employee’s rights under the ESA and who take action against those employees in connection to their pregnancy and parental leave rights may open themselves to legal liability for violations of the ESA and the employee’s Human Rights protected under the Code.
An employment and Human Rights lawyer can help employees navigate the process to resolve a workplace dispute with their employer, whether through negotiation, a legal proceeding, or both.
If you are an employee or employer with questions about your rights and obligations respecting maternity leave, or otherwise need assistance with a workplace dispute, 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 protected], and we will be happy to assist.
- The Difference Between Pregnancy Leave and Parental Leave?
- Pregnancy and Parental Leave Ontario
- Family Status Discrimination: Recognizing And Addressing Workplace Challenges