Embarking on the journey of becoming a parent can be an exciting and beautiful experience.
In Ontario there are two main laws that protect workers and their jobs during this time: the Employment Standards Act, 2000 and the Human Rights Code. In this column we will explore these and how they protect workers’ rights before the arrival of the baby, during the baby’s initial arrival, and after the return to the workplace. These protections revolve around job security, freedom from discrimination or harassment, and entitlement to some monetary benefits.
Parental leave rights are intended to help avoid disadvantaging new and expectant parents. For example, employees are entitled to earn credit for length of employment, length of service, and seniority while on leave. In most cases, employees must be given their old or similar job back at the same or better pay.
While employers are not obligated to pay a salary to their employees during this time, some do offer a top-up (otherwise known as SUB payments). Many employees do have access to Employment Insurance (EI) benefits as well (employment insurance law is a separate, but related, topic, which is not covered in this column). Employees on pregnancy or parental leave have the right to continue participating in workplace benefit plans, such as insurances and pension. Employers must continue to pay their share of the premiums for any of these plans.
Another set of protections offered to new or expectant parents is through the Human Rights Code. Individuals are protected from differential treatment and harassment in the workplace due to their gender or family status. Differential treatment can include discrepancies in hiring, retention, promotion, or accommodation. Harassment encompasses a vast array of behaviours and can include comments about a woman’s appearance due to pregnancy, the parent’s attitude toward work once the child is born, negative comments about the impact on the workplace due to the leave of absence, and negative comments about the employee’s capacity to work and balance child-rearing responsibilities. Such behaviours are prohibited because they are discriminatory.
PREGNANCY LEAVE – Before the Arrival of the Baby
Pregnant employees have the right to take pregnancy leave – usually up to 17 weeks. The protection applies to full-time, part-time, permanent and contract employees. Unless there are complications, an employee must give their employer written notice at least two weeks before beginning a pregnancy leave. An employer cannot require an employee to return from pregnancy leave early or to prove through medical documentation, that she is fit to return to work. The decision to return to work belongs to the employee.
Denying or restricting employment opportunities to a woman because she is, was, or may become pregnant or because she had a baby, is discrimination and a violation of the Human Rights Code.
PARENTAL LEAVE – During the Baby’s Initial Arrival
New parents have the right to take parental leave –time off work when a child is born or first comes into their care. The protection applies to full-time, part-time, permanent and contract employees. The right extends to birth parents, adoptive parents, as well as a person who is in a relationship of some permanence with a parent of the child and who plans on treating the child as their own.
Parental leave is separate from pregnancy leave. A birth mother may take both pregnancy and parental leave. Birth mothers who take pregnancy leave are entitled to parental leave –up to 61 weeks, while all other parents are entitled to 63 weeks of parental leave. Unless there are surprises or complications related to the child’s arrival, an employee must give their employer written notice at least two weeks before beginning a parental leave.
A birth mother who takes pregnancy leave is expected to begin parental leave as soon as the pregnancy leave ends, unless the baby has not come into her care when the pregnancy leave ends. In all other circumstances, it is only necessary that the parental leave begin within 78 weeks after the baby is born, or from when the child first comes into care, custody and control of the parent. Once started, the leave must be taken all at once. The employee cannot use up part of the leave, return to work for the employer, and then go back on leave for the unused portion.
Rights After the Return to the Workplace
Employees cannot be threatened or penalized for inquiring about pregnancy/parental leave, or taking such leave. Upon return to work, their pay must be at least the same, and they are entitled to wage increases (if wages went up, or would have gone up, if not for the leave).
The employer has an obligation to accommodate reasonable needs of an employee related to their parental obligations (eg. Breastfeeding, or tending to an ill child). Likewise, if an employer perceives that an employee’s poor work performance is related to her pregnancy (e.g. an employee is less productive due to fatigue), they must inquire and explore accommodation options before using discipline or terminating her employment. Failure to do so may result in a Human Rights Code violation.
It is important to be aware of your rights in order to make the most of these protections. The above is the minimum provided by law. Parents may have additional rights under a company policy, collective agreement, or in special or extenuating circumstances.
Naturally, parents will have a lot on their mind while caring for their new child, worrying about mistreatment in the workplace should not be one of them.
- Ilija Dimeski is an employment and human rights lawyer. The content in this article is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Do you have a workplace issue or question about your rights at work? Write to us. Click hereto begin.