2. The Basics
• Governed by the Employment Standards Act or the
Canada Labour Code
• Actually two leaves: pregnancy leave (17 weeks) and
parental leave (35 weeks)
• ESA: all employees covered are entitled
• CLC: employees are only entitled if they worked for at
least six months prior to leave
• Human Rights: pregnancy covered under “sex
discrimination” ground
3. Benefits and Entitlements
• General rule: employment deemed continuous while on leave so the
employee’s entitlements remain the same
• What is payable:
• Vacation pay – regular vacation time and pay accrues while on
leave
• Termination pay – leave counts as service
• Extended health benefits – continue as if the employee is still
working
• What is not payable:
• Benefits tied to active employment, like performance based
bonuses, depending on the language in policy
• Employer contributions to health or pension plans if the employee
chooses not to pay her portion of coverage
4. Terminations
• Employers prohibited from terminating an employee
because of pregnancy or leave
• Termination of a pregnant employee or an employee on
leave can be lawful, provided it is not motivated in
whole or part because of the pregnancy or leave
• Employer bears the burden – expect intense scrutiny
5. Notice of Termination
• Under the ESA, notice of termination can’t overlap with
mat leave, so must be given when leave is over
• Common law reasonable notice:
• Working notice can’t run concurrently with leave
• Payment in lieu can be given while the employee is on
leave
6. Resignation
• The employee may state she has no intention of
returning to work when the leave is over
• Make sure to get resignation in writing
• Termination obligations of the employer are discharged
• If the employee resigns prior to taking leave, she will not
qualify for EI payments
7. Return to Work – Same/Comparable Position
• Must return the employee to the same or comparable position, can’t
unilaterally change a condition of employment because of leave
• Comparable position:
• status, compensation, prestige, duties, working conditions
• Condition of employment:
• Everything that in any way affects the employment relationship
• Changes unrelated to the employee’s absence that would have
occurred even if the employee had not gone on leave are ok
• Changes can always be made with the consent of the employee
8. Extending Leave
• ESA allows for some extensions:
• Up to 6 weeks for pregnancy leave
• Up to 5 weeks for parental leave
• Need medical support
• Father’s parental leave: must start within year of birth but can
end after the first year
• Consider other health related extensions
• No other legal requirement to extend leave
• Consider the use of accrued vacation time
9. Request for Change in Working Conditions
• Many employers face requests to make changes following a leave:
• part-time work
• a different work schedule
• the ability to work from home
• No legal requirement per se to change conditions of employment
• The employer can require the employee to return to the same
schedule and working conditions that were in existence before she
went on leave
10. Family Status Discrimination
• Possible Human Rights exposure under “family status”
ground:
• In order to show discrimination, there must be a serious
interference with a substantial parental/family duty
• Not all circumstances where employment obligations run
counter to parental obligations
• Distinction between normal and extraordinary family
obligations -- be more than just being a parent
11. Family Status Discrimination
• Denying extension of leave because of difficulty in
finding suitable childcare is not family status
discrimination
• When family status may become an issue:
• Disabled child
• Single parent
• Extreme work schedules/hours
