By George Waggott, founder, and Roberto Fonseca-Velazquez, summer law student, George Waggott Law
Parental leave is a right which employees are entitled to under Ontario law. It is therefore quite important for employers to know what their obligations are to an employee seeking to
go on parental leave. Parental leave, which is distinct from pregnancy leave in Ontario, allows a qualifying new parent to take unpaid time off work up to 61 or 63 weeks (depending on the circumstances).
Any qualifying new parent is entitled to parental leave including a birth parent, an adoptive parent (whether or not the adoption has been legally finalized) or a person who is in a relationship of some permanence with a parent of the child and who plans on treating the child as his or her own. This includes same-sex couples. In order to qualify, the employer must be covered by Ontario’s Employment Standards Act and the individual must have been employed with the organization for at least 13 weeks before commencing the parental leave. However, the employee does not have to actively be working during the relevant 13 week period. For example, they could be on sick leave or on vacation for part or all of those 13 weeks.
Since parental leave is not part of pregnancy leave, the birth mother of the child may take both pregnancy leave and parental leave. Mothers who take pregnancy leave are entitled to take up to 61 weeks of leave. If they do not take pregnancy leave, then they are entitled to up to 63 weeks of parental leave. Additionally, a birth father could be on parental leave at the same time the birth mother is on either pregnancy leave or parental leave. However, it is important to note that all qualifying employees are obligated to take all of their parental leave at one time, and the leave cannot be split into two or more different periods of time.
During their parental leave, employees have the right to continue participating in some benefit plans including, but not limited to, pension, life insurance, and dental plans.
Employees are also entitled to continue to earn credit for length of employment, length of service, and seniority. In most cases, employers will be required to give employees who take parental leave their jobs back at the end of the parental leave period. In this regard, an employer is not permitted to penalize an employee in any way because the employee is eligible for, planning to take, or actively taking parental leave. If the employee’s old job no longer exists when they return from parental leave, then the employer is obligated to give them a comparable job should one exist.
The two most significant laws for employees considering taking parental leave are Ontario’s Employment Standards Act (ESA), and Canada’s federal Employment Insurance Act (EI Act). The ESA provides eligible employees who are pregnant or new parents with the right to take unpaid time off work. The EI Act provides eligible employees with parental benefits that are payable to them during the period they are on an ESA parental leave. However, it is important to note that the rules for claiming time off under the ESA are different from those for claiming benefits under the EI Act. The relevant Ontario government guide provides the following example: a new father could start his parental leave under the ESA up to 78 weeks after the child is born, but he may be restricted from accessing EI Act benefits at that point. It is therefore important that relevant employees check relevant rules prior to taking leave. Further, employers should avoid providing employees with any advice about whether or not they qualify for a particular government benefit or program, including the duration of any such leave or benefit.
If an employee has taken pregnancy leave, then she must begin her parental leave when her pregnancy leave ends unless the child has not come into her care for the first time yet. All other parents must begin their parental leave no later than 78 weeks after the date the child is born or first comes into the care of said parent. To commence their leave, employees are required to give their employer at least two weeks of written notice before beginning parental leave. However, an employee who does not provide notice does not lose their right to parental leave. Employees are advised to tell their employer how many weeks they are intending on taking parental leave, but they are not required to. If the employee does not inform their employer how long they intend to be on leave, the employer must assume that the employee is taking either 61 or 63 weeks (depending on rules summarized above relating to whether or not the employee also took pregnancy leave.) If the employee does not inform their employer how long they intend to be on leave, then before they return to work the employee must give the employer at least 4 weeks’ written notice that they intend to return to work before using the full 61 or 63 weeks.
For more information about George Waggott Law, please see: www.georgewaggott.com, or contact: george@georgewaggott.com
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