Who Is Eligible For Pregnancy / Parental Leave in Ontario?

by Stacey R. Ball| August 12, 2021August 10, 2023 | Employment Contracts| | Employment Law

Pregnancy Leave and Parental Leave

In Ontario, pregnancy leave (i.e., maternity leave) and parental leave are governed by the Employment Standards Act (“ESA”), which establishes minimum employment requirements or standards that all employers must comply with. Under the ESA, pregnant employees have the right to take up to 17 weeks of unpaid time off work. This is known as a pregnancy leave.

After the child is born, new parents acquire the right to take parental leave. Birth mothers who took a pregnancy leave are entitled to up to 61 weeks’ of parental leave. Every other new parent, including birth mothers who did not take a pregnancy leave, is entitled to up to 63 weeks’ parental leave.

Eligibility for Pregnancy Leave

In order to be eligible for pregnancy leave, the pregnant employee must

Be working for an employer that is covered by the ESA; and,
Have started working for that employer at least 13 weeks prior to the expected date of birth (i.e., the due date).

As long as these two requirements are met, it does not matter whether the pregnant employee works full-time or part-time or on a permanent or fixed term contract. It also does not matter if the employee has not actively worked for all 13 weeks prior to the due date. The employee must only have commenced employment at least 13 weeks before the due date (i.e., the employee does not need to work 13 weeks to be eligible).

It is also irrelevant if the baby is born earlier than expected. As long as the employee began working 13 weeks before the expected due date (regardless of whether it is actually the day of birth), the employee will be entitled to pregnancy leave.

The maximum duration of a pregnancy leave is generally 17 weeks, but could be longer if the employee is still pregnant after 17 weeks. In that case, the leave may continue until the child is born.

According to employment contracts, a pregnant employee is required to give their employer at least two weeks’ written notice before taking their pregnancy leave. However, failing to give this notice does not mean a pregnant employee loses their right to take a pregnancy leave.

Eligibility for Parental Leave

There are similar requirements to be eligible for parental leave. Specifically, an employee who is a new parent will have the right to take up to 61 (if they are the birth mother and took a pregnancy leave) or 63 weeks’ leave if that employee:

Is working for an employer covered by the ESA; and
Was employed for at least 13 weeks prior to taking parental leave.

Likewise, the employee does not actually have to work 13 weeks before taking their leave. They must have only commenced employment 13 weeks before taking their leave.

What does it mean to be a “new parent”? A “parent” includes birth parents, adoptive parents, and those persons who are in relationships of some permanence with a parent and who intend on treating the child as their own. If you are any of the above, and if you meet the two listed requirements, you may be entitled to a parental leave.

Generally, a birth mother is expected to begin her parental leave immediately following her pregnancy leave. In all other cases, parental leave must be no later than 78 weeks following the date of birth or the date the child first came into their care, custody or control.

Parental leave also requires two weeks’ written notice. Failing to give this notice however does not disentitle you from taking parental leave.

Your Rights While on a Pregnancy or Parental Leave

Taking a pregnancy or parental leave does not mark the end of your employment. Generally, you have a right to reinstatement and must be given either the same job back or a comparable job if the old job no longer exists. You should find security in that your employer cannot punish you for being eligible for a pregnancy or parental leave, or even for considering taking one. The employee cannot be given lower pay after their return than they would have made prior to their leave.

Although these leaves are unpaid, employees who take either a pregnancy leave or parental leave nevertheless have the right to continue participating in certain benefit plans. This might include pension plans, life insurance plans, dental plans, etc. However, employees must also continue paying their share in order to preserve their entitlements.

In addition, while on pregnancy or parental leave you continue to have a right to receive credit towards seniority and length of service.

Employment Insurance and Without Cause Termination

by Stacey R. Ball| August 11, 2021August 10, 2023 | Employment Contracts| | General

If you have been terminated without cause, you will be eligible to collect Employment Insurance (“EI”). If you were terminated for cause, you will not be eligible for EI. Without cause termination occurs where your employer terminates you without you having done anything seriously wrong to warrant the termination. The very purpose of EI is to provide temporary income support to unemployed workers who are searching for new employment. EI was created essentially for the purpose of assisting workers terminated without cause.

There are numerous reasons why an employer might dismiss you without cause. There might have been a shortage of work. The employer might have thought you weren’t a good fit. The employer might have decided to close shop. You might have done something wrong. It is important to know that simply doing something wrong will usually not amount to just cause for termination. Usually, you would have to do something serious to be terminated for cause, or otherwise do something less serious frequently enough that, cumulatively, or taken together, just cause for termination is established. Just cause is a difficult standard to meet and it is more likely for terminations to be without cause than with cause.

Eligibility Requirements

In order to be eligible for EI, you must fulfil each of the following requirements:

a) You were previously employed in insurable employment;
b) You were terminated without cause (through no fault of your own);
c) You have not worked or been paid for at least 7 consecutive days in the last 52 weeks;
d) You have worked the required amount of insurable employment hours in the previous 52 weeks or since the start of your EI claim, whichever is shorter;
e) You are ready, willing and able to work each day; and
f) You are actively looking for new employment.

After your termination, your employer should submit to Service Canada your “Record of Employment”, which will tell Service Canada about your entitlement to EI.

Are you Eligible for EI if you quit Your Job?

An employee who quits their job must have done so with just cause in order to retain their entitlement to EI. This requires more than simply having a “good reason” to quit. Rather, you should be able to show that you were constructively dismissed, that you experienced harassment or discrimination, or that the work environment was unsafe. If you quit under these circumstances, you may nevertheless be entitled to EI. Otherwise, you will lose your entitlement to EI.

How Much Can You Receive? How Long Can You Receive?

The rate for calculating EI benefits for most people is 55% of their average insurable weekly earnings. In 2021, the maximum yearly insurable earnings amount is $56,300. Taken together, this means that you can receive a maximum amount of $595 each week.

The amount of time during which you can continue to receive EI will depend partly on the unemployment rate of your region as well as the amount of insurable hours you have accumulated in the last year or since your last claim, whichever is shorter. You should be able to receive EI from between 14 weeks up to a maximum of 45 weeks. Note, however, that you may be entitled to an additional 5 weeks (thus a maximum of 50 weeks) if you are a seasonal worker.

Are Work Hours Regulated in Ontario?

by Stacey R. Ball| August 10, 2021August 10, 2023 | Employee or Dependent Contractor

How many hours per week can your employer expect or require you to work? How many hours per day? These are questions anyone who works long hours will inevitably ask themselves. Fortunately, work hours are indeed regulated in Ontario and there are maximum amounts of hours per week and per day that an employee can be required to work. These are set out by the Ontario Employment Standards Act (“ESA”).

Maximum Daily and Weekly Limits

a) Daily

By default, the maximum amount of hours an employee can be required to work in a single day is 8 hours. Alternatively, the employer can require their employees to work longer than 8 hours if the employer has an “established regular workday” exceeding 8 hours. The established regular workday, however, cannot exceed 13 hours. Therefore, the maximum amount of hours an employee can be required to work in a day is between 8 and 13 hours.

b) Weekly

Generally, the maximum amount of hours an employer can require their employees to work in a single week is 48 hours. This can be exceeded by agreement between the employer and employee; however, this employment contract does not relieve the employer of their obligation to provide overtime pay.

Hours Free From Work

The ESA not only sets out how long an employer can require their employee to work, but also how long an employee is entitled to be away from work. Employees are entitled to 11 consecutive hours away from work each day. This rule cannot be altered by agreement. However, it does not apply to employees who are “on call”.

Between shifts, employees are entitled to at least 8 hours off work. In order to be eligible, the two separate shifts must combine for a duration exceeding 13 hours. For example, if the employee worked only 3 hours the first shift, they are not entitled to 8 hours off before their next shift if the next shift is only 8 hours (11 hours total).

Each week, an employee is entitled to either 24 consecutive hours off work or, alternatively, 48 consecutive hours off work in every period of 2 consecutive work weeks.

Importantly, the above rules do not apply in certain exceptional circumstances. These include emergencies, unforeseen interruptions to the delivery of essential public services, and unforeseen interruptions to seasonal operations, among others.

Eating Periods

Employees are entitled by law to a 30-minute eating period each day. An employee cannot work more than 5 hours without having an eating period. Notably, eating periods are not considered hours of work and do not count towards overtime pay. Employers are not required to provide their employees with “coffee breaks” beyond this 30-minute eating period.

Minimum Hours

The ESA does not provide for minimum hours of work. Theoretically, an employer could require their employee to work 5 minutes each day and not be violating the ESA. However, if an employee regularly works more than 3 hours each day and is subsequently required to come to work for a period of less than 3 hours, the employer is then obligated to pay the employee as though they had worked 3 hours. This is the “three hour rule”.

ESA is Not Always Applicable

Although the above rules apply to the vast majority of employees, there are certain exemptions. Some industries and jobs are not covered by the ESA, and therefore do not have the benefit of the above rules. Among these exemptions are: police officers, co-op students, banks, politicians, judges, and employees governed by federal law (i.e., Canada Labour Code), among others.