Pregnancy, Parental and Emergency Leave

Pregnancy, Parental and Emergency Leave

By Melynda Layton LLB

Presented in September 2001 as part of the 6 Minute Employment Lawyer Series

Introduction

The Employment Standards Act, 2000 (ESA 2000 or the Act) sets out the rights and responsibilities of employees and employers in Ontario workplaces. The Ontario Legislature passed the ESA 2000 on December 20, 2000 and received Royal Assent the next day. The new Act and its Regulations came into effect September 4, 2001.

The amendment ensures continuity between provincial legislation and the new federal Employment Insurance entitlements, passed on June 29, 2000. Changes to Employment Insurance increased parental leave benefits from ten (10) weeks to thirty-five (35) weeks for those employees whose children were born, adopted on or after December 31, 2000. Combined with the pre-existing seventeen (17) weeks pregnancy leave, an employee is entitled to be off work and claim up to fifty-two (52) weeks of Employment Insurance Benefits.

The Canada Labour Code was also amended to extend parental leave to thirty-seven (37) weeks from twenty-four (24) weeks.

The changes to the ESA and its Regulations are the first attempt at modernizing employment standards law in Ontario in more than two decades. Changes to the Act are intended to ensure greater flexibility for employers and employees to design work arrangements reflective of today’s business and personal needs.

The new ESA 2000 repeals five provincial employment law statutes including the Employment Standards Act, One Day’s Rest in Seven Act, Government Contracts Hours and Wages Act, Employment Agencies Act, and the Industrial Standards Act. 

Two of the most significant changes to the ESA are the enactment of Emergency Leave provisions and changes to the Parental/Pregnancy Leave provisions.

EMERGENCY LEAVE

Section 50 of the ESA 2000 entitles an employee to a maximum of ten (10) days unpaid emergency leave if their employer regularly employs fifty (50) or more employees. Emergency leaves of absence are justified for any of the following reasons:

1. A personal illness, injury or medical emergency;

2. The death, illness, injury or medical emergency of a “specified individual”; or

3. An urgent matter that concerns a “specified individual”.

“Specific Individuals” include any one of the following:

1. The employee’s spouse or same-sex partner;

2. A parent, step-parent or foster parent of the employee, the employee’s spouse or the employee’s same-sex partner;

3. A child, step-child or foster child or the employee, the employee’s spouse or the employee’s same-sex partner;

4. A grandparent, step-grandparent, grandchild or step-grandchild of the employee, the employee’s spouse or the employee’s same sex partner;

5. The spouse or same-sex partner of a child of the employee; or

6. The employee’s brother or sister.

7. A relative of the employee who is dependent on the employee for care or assistance.

An employee who wishes to take emergency leave must advise his or her employer before commencement of the leave. If it is not possible to advise the employer before beginning the leave, the employee shall advise the employer “as soon as possible”. If an employee takes any part of a day as leave under this section, the employer may deem the employee to have taken a full day’s leave. Finally, pursuant to the Act an employer can require an employee to provide evidence, reasonable in the circumstances, that the employee is entitled to the leave.

PREGNANCY & PARENTAL LEAVE

Birth mothers are now entitled to seventeen (17) weeks of pregnancy leave and thirty-five (35) weeks of job-protected parental leave. All other new parents can take up to thirty-seven (37) weeks of leave. The result of these new provisions is a newborn may collectively have a parent at home for a total of up to eighty-nine (89) weeks. This includes: seventeen (17) weeks of pregnancy leave [birth mother], (2) thirty-five (35) weeks of leave [birth mother], (3) thirty-seven (37) weeks of leave [other parent].

Pregnancy Leave

Effective December 30, 2000, pregnant women are entitled to seventeen (17) weeks pregnancy leave and thirty-five (35) weeks job-protected parental leave if their child was born -- or first came into the care, custody and control of the employee -- on or after December 31, 2001. The old Act also allowed for seventeen (17) weeks of pregnancy leave. To be eligible for pregnancy leave, an employee had to be employed with the employer at least thirteen (13) weeks, or more, prior the baby’s “due date”. Section 46(3) of the ESA 2000 clarifies pregnancy leave may begin on the date the employee gives birth if it is earlier than seventeen (17) weeks before the due date.

A employee wishing to take pregnancy leave must give her employer at least two (2) weeks written notice before commencement of the leave. The employer can request a doctor’s certificate stating the expected birth date. If an employee stops working because of a complication caused by her pregnancy or because of a birth, still-birth or miscarriage that occurs earlier than the due date, the employee must give the employer written notice of the start of the pregnancy leave within two (2) weeks. Again, the employer can request a medical certificate stating that the employee is unable to work because of pregnancy complications, due date complication, still-birth or miscarriage.

An employee can terminate her pregnancy leave earlier if she gives the employer written notice at least four (4) weeks before the date she wishes to end her leave.

If an employee is on pregnancy leave and resigns prior to her return to work, she must give at least four (4) weeks written notice to her employer. This provision does not apply if the employee is constructively dismissed.

Parental Leave

A “parent” is a man or woman who:

1. is the birth parent of a child;

2. adopts a child;

3. becomes a step-parent; or

4. is in a long-lasting relationship with the parent of a child and intends to treat the child as his or her own.

The Parental Leave provisions are set out in Section 48 of the new ESA. It provides that an employee who has been employed by his or her employer for at least thirteen (13) weeks and who is the parent of a child is entitled to a leave of absence without pay from the date their child was born -- or first came into the care, custody and control of the employee. Parents of newly born or adopted children are entitled to parental leave.

An employee must commence parental leave no later than fifty-two (52) weeks after the day the child is born or comes into the employee’s care, custody and control for the first time. This extends the thirty-five (35) weeks that existed under the old ESA. Also, an employee who has taken pregnancy leave must begin her parental leave at the end of the pregnancy leave unless the child has not yet come into her care, custody and control for the first time.

Under the new regime, parental leave is extended from eighteen (18) weeks to thirty-five (35) weeks for those employees who take pregnancy leave and to thirty-seven (37) weeks for those who do not. A woman who takes both pregnancy and parental leave is entitled to be off work for fifty-two (52) weeks, the full period during which employment insurance benefits are available to the employee, if she qualifies, including the two (2) week waiting period. A parent who takes only parental leave can collect Employment Insurance parental benefits for thirty-five (35) weeks, if the employee qualifies, as the thirty-seven (37) week leave allows time for the two (2) week waiting period during which the employee is not earning income. The Employment Insurance Act now requires only one parent serve the two (2) week waiting period.

An employee must give his or her employer at least two (2) weeks written notice before the date leave is to commence. The notice should tell the employer the date parental leave will start and the date the employee plans to return to work. If the return date is not included, the employer must assume the employee is taking the longest leave that is available under the Act. After the employee has started leave, the employer must be given at least four (4) weeks written notice of any changes to plans.

If a baby or child comes into the employee’s custody, care and control for the first time earlier than expected, parental leave starts on the day the employee stops working and the employer must receive written notice from the employee that he or she is taking parental leave with two (2) weeks of starting the leave.

If an employee wants to change the date of their return to work, the employer must receive at least four (4) weeks written notice before the change. For example, if the employee wants to return to work earlier than he or she originally indicated, written notice must be provided four (4) weeks before the new earlier date. If the employee wants to extend parental leave as permitted under the Act, the employer must receive four (4) weeks notice before the date the employee first said he or she would return to work.

Resignation

Any employee who takes either pregnancy or parental leave and who wishes to resign from employment either before the leave expires or when it expires is required to give the employer four (4) weeks written notice of the termination of the employee’s employment.

RIGHTS DURING LEAVE

The Act has not resulted in changes to the rights of employees who take pregnancy and parental leave. The only change is those same rights also apply to employees who take emergency leave.

An employee continues to participate in certain employee benefit plans. Section 51(1) of the Act indicates while an employee is on parental leave, the employer must pay the employer portion of payment to certain benefit plans including pension, life insurance, accidental death, extended health, dental and any other types of benefit plans that are prescribed, unless the employee gives written notice that they do not want to keep making their own payments to such plans.

Section 52(1) provides pregnancy and parental leave continues to be included in the calculation of the employee’s length of employment and seniority in determining an employee’s rights under the employment contract. Emergency leave time is also included in these calculations. The times are not included in determining whether an employee has completed a probationary period (s. 52(2)).

In most cases, the employer must return the employee back to the job they performed prior to their pregnancy or parental leave (if it exist), or a comparable one if it does not. The new Act provides an exemption to this right where the employment of the employee is ended “solely for reasons unrelated to the leave” (53(2)). For example, an employer may claim the employee’s employment was terminated because of a restructuring.

Finally, if the wages of the employee’s job have increased while the employee was on leave, the employer is obligated to pay the higher wage (s. 53(3)).

Section 73(1) of the new Act prohibits an employer, or a person acting on behalf of an employer, from intimidating, dismissing, or otherwise penalizing an employee, or threatening to do so, because the employee is or will become eligible to take, intends to take or takes a pregnancy, parental or emergency leave.

Conclusion

The new Employment Standards Act extends parental leave entitlements to correspondence with the federally available Employment Insurance Benefits. Birth mothers are now entitled to seventeen (17) weeks of pregnancy leave and thirty-five (35) weeks of parental leave. The other parent is allowed thirty-seven (37) weeks of parental leave. The new Act also has provisions entitling employees to ten (10) unpaid days leave to address family emergencies. Protection of the rights of employees who have taken pregnancy and parental leaves have remained the same, but these rights have now been extended to those employees on emergency leave.

To ask a question or for further advice please contact Melynda at melyndalayton@careerlaw.ca or by telephone at 613-225-4400