In this article, we discuss expecting parents’ rights to take job protected unpaid time off work before and after the birth of a child.

Which Law Applies?
The laws governing employment are different depending on where you work. Of course, everything starts with what’s provided in an employment contract; if your contract says you are entitled to two years of maternity leave, that’s great! On the other hand, if your contract says you cannot have any time off after having a baby, then that contract (or that part of the contract at least) is likely unenforceable because it violates the Canada Labour Code (“CLC”), or its provincial counterparts like the Ontario Employment Standards Act (“ESA”).

There are only minor differences between the CLC and the ESA with respect to protected time off from work, but it is important to know which law applies to your situation. If you work as an employee in a federally regulated industry like banking, telecommunications, air or rail travel, then the CLC applies. If the CLC does not apply, then the Ontario ESA will apply (assuming you work in Ontario). It’s that simple.

Do you Qualify?
Expecting mothers are eligible for pregnancy leave under the CLC if they have completed six months of continuous employment before leave begins.  Under the ESA, expecting mothers qualify for pregnancy leave if they have started their employment at least 13 weeks before the expected due date. Any absence that does not sever your employment – like a sick leave of vacation – does not interrupt your continuity of employment.

Pregnancy Leave
Expecting mothers – not spouses and not adoptive parents – are permitted to take up to 17 consecutive weeks of pregnancy leave, also be called maternity leave.  

Under the CLC, pregnancy leave can start up to 11 weeks before the expected due date. Under the ESA, leave can start up to 17 weeks before the due date. The last day to start this leave of absence is – understandably – the day the baby is born.  A pregnancy leave may be extended if the baby arrives after the expected due date.

Expecting parents are required to provide between four weeks notice (under the CLC) and two weeks notice (under the ESA) of the start date for a pregnancy leave. Failure to do so doesn’t deprive you of your right to time off, but it certainly sends the wrong message.

An employer may require a medical certificate confirming your pregnant, and the due date. The start date may be changed if sufficient notice is provided. If they do, there’s no harm in proving one. An employer cannot, however, dictate when a pregnancy leave starts, even if an employee is sick or her pregnancy limits the type of work she can do.

Parental Leave
New parents, including birth parents, adopting parents, and people in a relationship with a parent of a child with plans to treat the child as their own, have the right to take parental leave, which provides for up to 37 weeks of job protected leave (or 35 weeks if you’re a mom who has already taken pregnancy leave).

A birth mother who takes pregnancy leave is generally required to start her 35 weeks of parental leave as soon as pregnancy leave ends, though there are some exceptions. Any other eligible employee can start their 37 weeks of parental leave anytime within the 52 weeks following the arrival of a child. Just like pregnancy leave, parental leave must be taken all at once and advance notice must be provided to the employer.
 
Other Types of Job Protected Leave
Pregnancy and Parental leave are baseline entitlements, which means your employer must permit you time off work. An employer may also simply agree to provide more time off if requested. If time off is needed for medical reasons, an employer would be hard pressed to deny a reasonable request supported by a doctor’s note, especially where an employee is participating in an insurance plan that provides for disability benefits. If, heaven forbid, complications should arise before or after a pregnancy, the law also provides for other types of job protected unpaid leaves of absence, such as personal emergency leave or family medical leave.

Changes Ahead
As you may have heard, the federal and provincial governments are proposing changes to these laws, and to the Federal Employment Insurance program that may extend parental leave. Right now, however, these changes have not been put into place, this article only touches upon the system as it stands.

Conclusion

The law is quite fluid and this article is an overview of the law.  The comments in this article are not be taken as legal advice, rather, legal advice should always be sought out prior to engaging in actions which have the potential to harm your employer-employee relationship notwithstanding your rights.  My recommendation is that if you have a question or concern, simply send an email to Aaron Waxman at awaxman@awaxmanlaw.ca or call at 416-661-4878/1844-583-4878 (or #LTD on your cell phone).  One more thing, before you call you should always remember that there are no bad questions!