Q&A: Maternity Leave & Your Rights as an Employee in Ontario
Having a baby can be one of the most exciting things in life. Along with the excitement of the new family member, however, come many new challenges:
Will I go on maternity leave? How long can I take off work? Can I afford to be off work? What benefits and top-up can I get? Do I need accommodation at work during my pregnancy? How will I make the transition back into my job?
These concerns put pressure on parents-to-be. Recognizing this, the following Q&A session tries to answer some common questions that employees may have about maternity leave and work.
Q: As a pregnant woman, what rights do I have to take time off work?
A: If you are pregnant and feeling unwell (such as experiencing morning sickness) you may require time off work or flexibility over the hours that you do work. If this is the case, you should speak with your company’s Human Resources contact or your manager. Once you let your employer know that you are experiencing pregnancy-related illness, they have an obligation to provide you with reasonable accommodation.
As you approach your due date, you may also need to take time off. In Ontario, the Employment Standards Act provides for pregnancy leave, for up to 17 weeks without pay. To qualify, you must have been working for your employer for at least 13 weeks before your due date. As this type of leave is unpaid, it is also worthwhile speaking with your employer about whether you qualify for a top-up.
Q: I am pregnant and my commute to and from work has become too hard. What can I do?
A: Generally your employer has an obligation to provide reasonable accommodation if, due to your pregnancy, you become unable to do parts of your job, or the commute to and from your job has become too difficult.
In these circumstances, you can work with your employer to find a reasonable solution. This could include:
Setting a flexible work schedule;
Scheduling modified working hours, or
Allowing you to work from home, or (if your employer’s operations are big enough) to work from another of its locations.
Q: How much time off does my employer have to give me for maternity leave?
A: Whether you are a new mother or father, the Employment Standards Act provides unpaid leave from work, within 1 year of your child being born or coming into your care. Birth mothers are entitled to take up to 35 weeks of maternity leave, while all other parents (fathers, adoptive mothers etc.) may take off up to 37 weeks.
To qualify for maternity leave you must have been working for your current employer for at least 13 weeks before the date that your leave commences.
It is worthwhile noting that the definition of ‘parent’ in the Employment Standards Act is broad. It includes biological parents, adoptive parents and those in a serious relationship with one of the parents, who intend to treat the child as their own.
Q: Can I get income support or do I qualify for a top-up during my maternity leave?
A: If your employer does not provide much in the way of income support, taking time off can be financially challenging. The Federal Government provides maternity and parental Employment Insurance (“EI”) benefits to eligible individuals to help bridge this gap.
EI maternity benefits are available to biological mothers for up to a maximum of 15 weeks.
EI parental benefits are available to the parents of a newborn or newly-adopted child, for up to a maximum of 35 weeks.
In order to assess your eligibility and to apply, you should visit the Service Canada website.
In addition to accessing EI benefits, make sure to speak with your employer about what top-up you are entitled to receive while off on leave.
Q: I am returning to work from maternity leave. My boss has said that they now only need me part-time (I used to work full-time), and they have changed my job quite a lot. Can they do this?
A: As a general rule, an employer should not make fundamental changes to your job, unless you first agree to the changes taking place.
For example, if before going on maternity leave you worked as a full-time office manager and learn that on your return you are now a part-time assistant manager, you should speak with a lawyer. Generally, you will not be required to accept this type of change. As an employee who experiences something like this, you have a number of different rights including:
Enforcing the Employment Standards Act against your employer: it is a breach if your employer fails to reinstate you to the position you held prior to your maternity leave, if it still exists, or to a comparable position, if it does not.
Starting a Human Rights Application: If you are not returned to your former position when you come back from maternity leave, and your former position is still available, it is likely a breach of the Human Rights Code, for which you can seek compensation or reinstatement; and
Starting a Court Claim for Constructive Dismissal. Constructive dismissal may occur when an employer drastically changes your role upon your return from maternity leave, and you do not agree to the changes. You may be able to seek compensation as a result.
Click here to read about a case that dealt with these issues. The employee was successful in being awarded compensation as a result.
*This Q&A session provides general information. It should not be relied upon as specific legal advice.*