If you just found out you’re welcoming a new child to your family, you may be entitled to significantly more maternity leave or parental leave than last year’s new parents.
The federal government rolled out changes to pregnancy and parental leave benefits (aka “maternity leave” or “paternity leave”) in December 2017, announcing that new parents could now access up to 18 months of leave.
A month later, the provincial government’s own changes to pregnancy and parental leave rights under the Ontario Employment Standards Act (or “ESA”) took effect. However, your right to take time off isn’t necessarily the same as your EI benefits.
PREGNANCY AND PARENTAL LEAVE
In Ontario, maternity leave under the ESA is generally broken up into 2 leaves: a pregnancy leave and a parental leave. Employers aren’t required to pay you during either of these leaves, unless they’ve agreed to do so through your employment contract, their internal policies or otherwise. However, new parents who have made sufficient contributions can apply for EI during their leave.
Only pregnant workers have the right to pregnancy leave. Typically, pregnancy leave can be taken for up to 17 weeks.
All new parents are entitled to take parental leave. Workers who took pregnancy leave can take a maximum of 61 weeks’ leave. All other new parents can take a maximum of 63 weeks’ leave – this includes parents of all genders, biological and adoptive parents.
HOW AND WHEN DO I TAKE MY LEAVE?
You can take pregnancy and/or parental leave if are covered by the ESA, and have been working for your employer for at least 13 weeks before your baby’s due date, in the case of pregnancy leave, or the start of your parental leave.
Pregnancy leave is only available to pregnant people. This leave can start as early as 17 weeks before your due date, or on the date of your baby’s birth if she is more than 17 weeks premature. You may also be entitled to leave following a miscarriage or stillbirth.
Pregnant parents are generally required to take their pregnancy and parental leaves back-to-back. New parents who did not take a pregnancy leave can start their parental leave any time within 78 weeks of their child’s birth or from the date that their child first came into their care, custody and control.
While you may want to work out a start date with your employer in advance, it’s completely up to you when you begin your pregnancy or parental leave. But, you do need to give your employer at least 2 weeks’ written notice (with the exception of a premature birth). Likewise, you can choose to take a shorter leave if you want. To do this, or to change your return date, you need to give your employer 4 weeks’ written notice. If your employer agrees, you can extend your parental leave beyond the 61 or 63 weeks provided by the ESA.
WHAT HAPPENS TO MY JOB?
Generally speaking, you are entitled to return to work after maternity or paternity leave. Ideally, this means returning to the same job you had before your leave. However, your employer can return you to another, comparable job if your job no longer exists and you are paid at least as much as you were in your prior position. During your leave, you have the right to continue to participate in any benefit plans at your workplace and to continue to accrue seniority.
It is illegal for an employer to discipline you or refuse to take you back or otherwise discriminate against you because you took a pregnancy/parental leave or because you are pregnant. However, you may be subject to legitimate layoffs or dismissal before, after or during your leave.
Employers who fail to reinstate new parents can face ESA complaints, Human Rights Tribunal Applications or civil suits for wrongful dismissal.
To learn more about your rights before bringing your newest family member home, you can check out the Ministry of Labour’s resources and learn about your potential EI entitlements here . If you have questions or concerns about how you’ve been treated after telling your employer you’re pregnant or taking a maternity leave or parental leave, please contact a lawyer to get advice about your particular situation.
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