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.

 

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