Some of the most frequently voiced concerns we encounter from expectant or new parents are related to job security and changes upon returning to the workplace.
Many wonder if they will have a place within their companies upon their return from pregnancy or parental leave. Others have returned and have felt as if they have been mistreated, sidelined or disadvantaged in some way.
There are many reasons that an employer can terminate an employee, but it is prohibited by law to fire an employee for taking a pregnancy or parental leave.
More than that, the law states that you must be returned to the same position held prior to the leave, if it still exists, and if it does not, returned to a comparable position.
Even if the company claims they have “restructured” while you were away and that your old job “no longer exists,” if you have good reason to doubt the employer’s claim, you should consult with an employment lawyer. If your old job was in fact eliminated, note that your employer is still obligated to find a way to return you to a comparable position.
What if the new company likes the new employee that took your place during leave, and would prefer to keep the replacement upon your return? That is an issue we see a lot, but the law is clear: employers are prohibited from letting you go because they prefer to maintain your replacement in your old job.
You have rights. To make sure that you are properly protected, it is always wise to consult with an employment lawyer to help guide you.
However, keep in mind that while the law is there to protect you, every situation is different, and context matters. It is important to share the details of your concerns with an experienced employment lawyer.
The short answer is: it depends.
There are two types of leave: pregnancy leave and parental leave. If you are a birth mother or a surrogate, you can access pregnancy leave. Parental leave is slightly different for birth mothers, fathers, and adoptive mothers.
For provincially regulated employees, under the Ontario Employment Standards Act (ESA), employees who take pregnancy leave are permitted to take up to 17 weeks of unpaid leave, and birth mothers can combine pregnancy and parental leave, taking up to 61 weeks of total leave. Parents, including adoptive parents who have not taken a pregnancy leave can take up to 63 weeks of unpaid parental leave.
There is one important caveat, however. Generally, to qualify for pregnancy leave, you must have commenced work with your current employer at least 13 weeks prior to your due date; and for parental leave, you must have worked for your current employer for at least 13 weeks prior to your leave. In both cases, it does not mean that you had to have actively worked for those 13 weeks; in other words, you could have been on vacation or sick leave during those 13 weeks as long as you started working for the employer 13 weeks before.
Employers are not required to pay wages of someone on pregnancy leave, although many do choose to offer top-up benefits. It is always a good idea to make yourself aware of your employer’s benefit plans, including any top-up benefits.
While it is important to note that an employer is not legally required to pay you while you are off on pregnancy or parental leave, generally, you are still entitled to your regular benefits coverage, and you continue to accrue seniority. If the premium costs are co-pay, you are required to pay your share of the premium costs during the leave.
You are also entitled to be paid for any amounts earned prior to the leave, including commissions, salary, accrued vacation pay, or any pro-rated bonus for the period of the fiscal year that you worked prior to the leave.
It is always best to consult with an expert if you believe you are being penalized or disadvantaged in the workplace for taking a pregnancy or parental leave.
For questions related to maternity or parental leave rights under the law, call Pak Smith Employment Lawyers. We will help you fully understand your rights, options, and possible remedies, enabling you to make the best possible choices for you and your growing family.