Tips for Pregnant Employees in the Workplaceachkarlaw-admin
The modern workplace looks a lot different than it did fifty years ago. More women are participating in the workforce than ever before. Many are taking up occupations traditionally dominated by men. It has compelled lawmakers to address the challenges female employees face in the workplace, such as pregnancy-related discrimination.
- Employer’s refusal to hire or promote an employee due to pregnancy or plans to become pregnant;
- Adverse treatment and harassment in the workplace due to pregnancy
- Demotion or termination of employment at least in part due to pregnancy
- Failure to accommodate employee’s need for time off to attend doctor’s appointments; and
- Failure to modify duties to accommodate pregnant employees.
The Code provides pregnant women with the right to equal treatment without discrimination based on sex, including pregnancy. Employers must ensure that their hiring, promotion, and termination practices do not discriminate against pregnant employees.
Employers must reasonably accommodate their pregnant workers up to the point of undue hardship. This could require modifying the duties of a pregnant employee where appropriate and not forcing them to work in a hazardous environment.
Employees also have other statutory rights allowing them to manage their pregnancy while continuing employment. These include pregnancy leave, parental leave, entitlement to maternity benefits, and the right to reinstatement after maternity leave, among others.
The article below will answer some important questions pregnant employees may have, including what are the pregnancy leave and parental leave entitlements of employees in Ontario. Can you lay off a pregnant employee? The article will also provide tips to help pregnant employees navigate their workplace rights.
What Are the Pregnancy Leave and Parental Leave Entitlements of Employees in Ontario?
Pregnant employees do not have to stop working at the onset of pregnancy. In healthy and uncomplicated pregnancies, many individuals continue working right up until the start of labor. However, this does not mean that the pregnant employees must wait until their due baby’s expected delivery date to go on pregnancy leave.
In Ontario, the provincial Employment Standards Act, 2000 (the “ESA”) and the federal Canada Labour Code (the ”CLC”) grant eligible employees unpaid time off work for reasons related to pregnancy. These statutes provide pregnant employees up to seventeen weeks of unpaid pregnancy leave (maternity leave in the case of federally regulated employees).
Employers are not obligated to pay the employees regular wages during the pregnancy leave. However, such employees may be entitled to maternity benefits. The Employment Insurance Act permits employees to claim maternity benefits during their unpaid leave from their workplace.
In some cases, the leave may be extended, such as when the employee took statutory seventeen weeks of pregnancy leave but has yet to give birth. The pregnancy leave will end on the date the employee gives birth, at which point they may commence parental leave.
Any new parent, mother, or father, can take parental leave of up to sixty-three weeks (sixty-one weeks for the birth mother who takes pregnancy leave) to care for their newborn child or newly welcomed child. While only birth mothers can take pregnancy leave, the definition of parent for parental leave eligibility includes birth parents and adoptive parents.
Additionally, the time taken on maternity and parental leave is credited towards the employee’s length of employment and contributes to their seniority in the workplace. Employees have the right to reinstatement after their pregnancy-related leave, meaning employers cannot terminate their employment or demote them because of pregnancy.
Can You Lay Off a Pregnant Employee?
In Ontario, employers may terminate an employee at any point and without giving any reason, so long as they give either proper notice or payment in lieu of notice (aka severance pay). This is called termination without cause.
Employers may also terminate employees for cause when they commit grave misconduct. In such cases, the employer does not have to give the employee notice or pay-in-lieu of notice. However, this is a high threshold to meet, especially to deny an employee their minimum entitlements under the ESA.
However, the Code prohibits employers from terminating employees for discriminatory reasons. The prohibited grounds of discrimination mentioned in the Code include sex and pregnancy. An employer may lay off pregnant employees for reasons unrelated to pregnancy, but not at least in part because of their pregnancy.
The employee claiming pregnancy-related discrimination does not need to show their pregnancy was the primary reason for their dismissal. Instead, they must prove it is more likely than not that their pregnancy was at least a factor in the employer’s decision to terminate them.
Decision-makers look at all the surrounding circumstances to make this determination. An employer may need to provide evidence supporting their basis for terminating the employee.
Employers should keep in mind that even demoting an employee or otherwise not putting the employee back in a comparable position after returning from leave may also be a violation of the Code. A demotion could also result in a claim for constructive dismissal entitling the employee to severance, and additional Human Rights damages.
Instead of filing a wrongful dismissal lawsuit, an employee laid off for pregnancy-related reasons has the option of filing an Application with the Human Rights Tribunal of Ontario (the “Tribunal”). The employee could seek lost wages from the date of their termination up to a date of hearing before the Tribunal, Human Rights damages, and non-monetary remedies in a Human Rights Application.
Some Tips for Pregnant Workers
Employers in Ontario must reasonably accommodate their workers belonging to a group protected under the Code, including pregnant employees. Pregnant employees should consider disclosing their pregnancy early to their employer in writing to trigger the employer’s duty to accommodate.
The early disclosure of pregnancy allows the employer to develop a strategy to manage the pregnant employee’s workload, accommodate their medical appointments and plan for their maternity leave. Doing so in writing ensures there is documentation of when a pregnant employee disclosed their pregnancy.
Both the employer and their pregnant employee should continue discussing the employee’s accommodation needs and revising the accommodation measures as the pregnancy progresses. Employees planning to go on pregnancy or parental leave should give their employer at least two weeks’ written notice.
Employees who need to start their pregnancy leave earlier than expected due to pregnancy-related complications must give their employer a written notice. They have two weeks from the point of stopping their work to give their employer written notice of the day the pregnancy leave commenced or when it will begin.
A pregnant employee who needs to stop working due to pregnancy-related complications may take some time off as sick leave rather than pregnancy leave. In this case, they must give the employer two weeks’ written notice, and the employer may request a medical note.
An employee on pregnancy or parental leave should consider giving their employer a tentative return to work date. This enables the employer to prepare for the employee’s return and redistribute work to ensure a smooth transition. Failure to communicate with an employee on pregnancy leave could be discrimination in violation of the Code.
If an employee does not provide their employer a tentative return date, the employer can assume the employee will take the full seventeen weeks of pregnancy leave. Further, if the employee fails to inform the employer regarding the duration of their parental leave, the employer may assume the employee will be on leave for the full sixty-one weeks or sixty-three weeks.
One of the most important tips for pregnant employees is that they should consult with an employment and Human Rights lawyer if they have questions about their rights. An employment and Human Rights lawyer can advise you on any steps you should take, negotiate on your behalf, and help you navigate the legal process to get the results you want.
Pregnancy can be the most exciting and stressful time of a person’s life. For this reason, pregnant employees require extra care and support from those around them, including their employers. By being proactive, employers and employees can ensure a smooth pregnancy without significant work disruption.
Employers must comply with their statutory duties and provide reasonable accommodation to pregnant employees. Further, the employees must inform their employer about their accommodation needs and give the required notice before going on maternity leave.
An employer who lays off a pregnant worker for pregnancy-related reasons violates the Code. In such cases, the employee may sue them for severance pay and monetary damages for discrimination. If pregnant employees do not want to sue for wrongful dismissal, they may approach the Tribunal and claim general damages for discrimination and seek lost wages.
An employment and Human Rights lawyer has the necessary expertise and experience to advise you on maternity leave and benefits entitlements. If your employer laid you off due to pregnancy, an employment and Human Rights lawyer could use their knowledge of the law and the legal process to help you bring a claim through the appropriate legal proceeding.