Employer’s Guide to Maternity Leave

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Maternity leave is one of the most stressful issues employers must manage. There are misconceptions about both the employer’s and the employee’s rights and responsibilities when it comes to such leave abound.  Below, we address the most common questions asked by employers.

Can I fire an employee for getting or being pregnant?

In short, the answer to this question is no. The Ontario Human Rights Code protects the right to equal treatment with respect to employment without discrimination because of sex. Section 10(2) of the Code specifically provides that:

The right to equal treatment without discrimination because of sex includes the right to equal treatment without discrimination because a woman is or may become pregnant.

So, if a woman becomes pregnant and informs her employer, the employer cannot legally fire her simply because she became pregnant. If the employer does fire her, the pregnant employee could bring an Application to the Human Rights Tribunal of Ontario asking for her job back, together with lost wages. If the pregnant employee does not want her job back, she could sue for wrongful dismissal plus damages for a breach of her rights as protected by the Code. 

Can I fire an employee for taking pregnancy leave?

Before answering the question about being fired for taking pregnancy leave, let us first consider what rights to pregnancy and parental leave a woman has.

Pursuant to Part XIV of the Ontario Employment Standards Act, 2000 (“the ESA”) a female employee, working in Ontario, who becomes pregnant has the right to take up to 17 weeks of pregnancy leave, and both parents, once a child is born or adopted, have the right to take up to 35 weeks of parental leave. There are some conditions on when employees are eligible to take such leaves, and the law imposes some obligations on employees, (e.g. a requirement to provide a doctor’s note confirming the employee’s due date – if asked – s. 46(4)(b)), but in general those are the employees’ rights to take leave.

The right to take pregnancy leave and parental leave is protected by the ESA. Section 74(1)(a)(iv) of the ESA provides that:

No employer or person acting on behalf of an employer shall intimidate, dismiss or otherwise penalize an employee or threaten to do so because the employee exercises or attempts to exercise a right under this Act.

Section 104 of the ESA provides that:

If an [Ontario Ministry of Labour] employment standards officer finds a contravention of [amongst other things, the right mentioned above] with respect to an employee, the officer may order that the employee be compensated for any loss he or she incurred as a result of the contravention or that he or she be reinstated or that he or she be both compensated and reinstated.

Section 74(2) of the ESA assists the employee by providing that:

Subject to [certain provisions,] in any proceeding under this Act, the burden of proof that an employer did not contravene a provision set out in this section lies upon the employer.

What all of that means is that if an Ontario employer fires an employee because she took maternity leave, then under Ontario law the Ministry of Labour has the power to get the worker her job back, together with compensation for lost wages. And, in any such case, it is the employer that must prove that the reason that the employee was fired was not because of the pregnancy leave, and not the other way around (i.e. it is not the employee that has to prove that it was because of the pregnancy leave.)

What benefits do I have to pay while the employee is on maternity leave?

A further implication of the right to take pregnancy and parental leave is set out in section 51 of the ESA. Generally, section 51 provides that, while on leave an employee continues to participate in all those benefit plans to which the employee would otherwise be entitled. Which means that if the employee was entitled to health, dental, or prescription drug benefits while an active employee, they remain entitled to participate in the plans providing those benefits while on leave. 

Subsection 51(3) provides that:

During an employee’s leave… the employer [is required to] continue to make the employer’s contributions for any [employer-sponsored benefits] plan… unless the employee gives the employer a written notice that the employee does not intend to pay the employee’s contributions, if any.

What happens to employee’s seniority when they are on maternity leave?

Section 52 of the ESA guarantees an employee’s rights to seniority while on pregnancy or parental leave and prescribes that the period of time that the employee is on leave must be taken into consideration in any calculation of their years of service.

Is the employee entitled to the same job when their maternity leave is over?

Once an employee’s pregnancy and parental leave are done, if the woman wishes to return to the workforce, she has the legal right, generally, to her old job back.

Section 53 of the ESA provides that:

Upon the conclusion of an employee’s leave under this Part [Part XIV], the employer [is required to] reinstate the employee to the position the employee most recently held with the employer, if it still exists, or to a comparable position, if it does not.

Subsection 53(3) protects the employee’s wage rate and the right to salary increases.

Can I fire an employee when they are on pregnancy leave?

The answer is maybe, but employers would be cautioned to proceed with extreme caution before doing so. An example of a legitimate reason to terminate an employee’s employment while on pregnancy leave would be a complete closure of the business.

With respect to the provision of “working notice”, rather than pay in lieu of notice, Canadian courts have frequently considered the question. The most commonly cited case on point is Whelehan v. Laidlaw Environmental Services Ltd., 1998 CanLII 6137 (BC SC). In that case the Honourable Madam Justice Allan of the British Columbia Supreme Court (equivalent to the Ontario Superior Court of Justice) decided that an employer could not legally provide working notice to an employee that was absent from active employment on account of pregnancy leave.  

A similar conclusion was reached by the New Brunswick Court of Queen’s Bench (again equivalent to the Ontario Superior Court of Justice) in the 2011 case of Donnelly v. Kings Landing, 2011 NBQB 267 (CanLII). In that case the Honourable Madam Justice Paulette C. Garnett, in reviewing a decision of a New Brunswick labour adjudicator, held that:

Notice of dismissal is intended to give an employee a reasonable amount of time to secure alternative employment. In seeking that employment, the employee must be prepared, if the opportunity arises, to go to work. A mother on maternity leave is not required to go to work therefore it cannot be said that she is both on leave and on notice at the same time. The two concepts are incompatible. (Para. 34) [Emphasis added.]

Can I fire an employee when they return from maternity leave?

The answer is maybe. An employer cannot fire an employee while she is on maternity leave because she is on maternity leave. However, generally, an employer does not have to reinstate an employee to her previous job or provide a comparable job if the employer’s reasons for ending the employment relationship are totally unrelated to the leave.  For some employees, when they attempt to return to work they will learn that their position no longer exists and there is no comparable position. In these cases, the employee is essentially fired upon returning from maternity leave through no fault of their own.

The question of why the employee was terminated upon return from leave thus becomes one of fact: was the employee terminated because she took leave or for some other reason? If the employee believes that she was terminated because she took leave, then that employee can file a claim with the Ontario Ministry of Labour.

How much severance must I provide to an employee who is fired while on, or shortly following, maternity leave?

If the employee is fired while on, or shortly following her, pregnancy for reasons completely unrelated to the pregnancy, for example the employee’s entire division or work group is eliminated, then the returning employee is still entitled to notice, and potentially severance, upon her attempted return to work.

The amount of notice and severance due to that employee will be a function of a host of factors. Legal advice should be obtained before making any severance offer.

I am required to accommodate the needs of parents?

The short answer is yes. In the case of Canada (Attorney General) v. Johnstone, 2014 FCA 110 the Federal Court of Appeal affirmed a ruling of the Canadian Human Rights Tribunal, which held that employers have a legal duty to accommodate parents’ childcare responsibilities.

However, while the law says that employers have a duty to accommodate employees with familial responsibilities, they must only do so to the point of “undue hardship.” Defining the limits of undue hardship is a point of consternation for many small business owners; it can often lead to litigation. The point remains that the law does not afford employees a blank cheque – it all about reasonableness.

Still have questions?

We appreciate that this can be an overwhelming amount of information and, in large part, this post does not answer all questions.

For those that still have questions about their rights or their employer’s obligations, or for employers wanting to know more about their rights and obligations, we encourage you to seek out the assistance of one of the Kelly Santini LLP employment lawyers.