The Canada Labour Code sets out the minimum employment standards for maternity leave in Canada. Every employee in Canada has the right to take maternity leave. The Code applies to federally regulated employees in Canada. Federally regulated industries include, for example, banks and airlines. If you are unsure if you work for a federally regulated employer, check Federally Regulated Companies in Canada.
If you are an employee in Ontario who is not federally regulated (about 90%), please go to Maternity Leave Ontario.
Employees Have a Right to Maternity Leave in Canada
Employees in Canada who are pregnant have a right to take maternity leave.
- A pregnant employee is entitled to up to 17 weeks of maternity leave.
- You can begin maternity leave no sooner than 13 weeks before the due date.
- Maternity leave must end 17 weeks after the due date.
This deadline can be extended when the child is not born during the maternity leave. If an employee is on maternity leave and does not give birth to their child within the 17-week leave, the maternity leave will be extended until the child is actually born.
A further extension of maternity leave is possible if your child is hospitalized within 17 weeks of being born. This would obviously be an extremely difficult time for new parents. For that reason, the Code allows an extension of maternity leave until the child is no longer in the hospital. This extension can last for up to 52 weeks.
Since maternity leave is a right, your employer cannot penalize you in any way for taking maternity leave, planning maternity leave, or for being eligible to take maternity leave. Learn more about an Ontario court case where an employee received significant damages after her employer penalized her following her maternity leave. After her maternity leave, her employer demoted her to a lower position with reduced hours and pay. The Judge awarded the Plaintiff twelve (12) months’ pay in lieu of notice and $20,000.00 for the Defendant’s violations of the Code.
Maternity Leave in Canada is Unpaid
Maternity leave is unpaid time off work. While on maternity leave, you maintain the right to participate in benefit plans and to acquire seniority. Taking a maternity leave does not create a break in your employment.
Give Your Employer Notice of Maternity Leave
It can be stressful to tell your employer about your pregnancy. It can be even more stressful to tell them you want to take maternity leave. However, you have a right to maternity leave, and your employer cannot penalize you for exercising that right.
If you are planning to take maternity leave, you must give your employer at least four weeks’ written notice before taking the leave. Your notice to your employer should also say how long you expect to be on maternity leave. You should also provide your employer with a certificate from your doctor confirming your pregnancy.
You Are Not Obligated to Take Maternity Leave
In Canada, your employer cannot force you to go on a maternity leave unless your pregnancy makes it impossible for you to perform an essential function of your job. If not, you can continue working without ever taking a maternity leave.
Parents and Adoptive Parents Have a Right to Parental Leave in Canada
Canadian employees also have a right to take parental leave. Parental leave is available to birth parents as well as adoptive parents.
Parental leave and maternity leave are not the same things. A birth mother can take both maternity leave and parental leave.
Like maternity leave, parental leave is unpaid time off work. While on parental leave, you maintain the right to participate in benefit plans and to acquire seniority. Taking parental leave does not create a break in your employment.
As parental leave is a right, your employer cannot penalize you in any way for taking parental leave, planning parental leave, or for being eligible to take parental leave.
Parental Leave in Canada is up to 63 Weeks Off
A parent or adoptive parent can take up to 63 weeks of parental leave.
Birth mothers can take both a maternity leave and a parental leave. Birth mothers who take a maternity leave can take a parental leave up to 78 weeks.
New parents must begin their parental leave no later than 78 weeks after the birth of the baby or after the day the child first came into their care.
Federally Regulated Employees Can Share Parental Leave
If there are two parents, they can share the parental leave. Parents who share parental leave can take a combined 71 weeks of leave.
If the birth mother is sharing her parental leave with a second parent, the two parents have access to a combined 86 weeks of maternity and parental leave. However, only parental leave can be shared. Maternity leave can only be taken by the pregnant employee.
Give Your Employer Notice of Parental Leave
Like maternity leave, new parents wishing to take parental leave must give their employer at least four weeks’ written notice.
You should also give your employer notice of when you expect to return to work. This means you should tell them exactly how many weeks you expect to be on leave.
You Have a Right to Your Job Back After Maternity Leave
If you have taken maternity leave or parental leave, you have the right to return to your job. This is called a right to reinstatement. You must be returned to either the same job you had before your leave or alternatively to a comparable job if your former job no longer exists. The new job would have to be in the same location and provide the same wages and benefits. This means your employer cannot reduce your salary because of your leave.
Your salary could still be reduced during maternity or parental leave if the employer reduces the wages and benefits of a group of employees as part of a reorganization plan. In this case, your salary would likewise be reduced as if you were working when the reorganization took place. If your employer instead increased the wages and benefits of that group, then you likewise would receive increased wages and benefits after returning from your leave.
The only time you do not have a right to your job back is when your employer dismisses you for reasons totally unrelated to your maternity or parental leave.
Aside from the right to your job back, you also have a right to be free from penalty for taking your leave. You cannot be penalized for planning to take or actually taking maternity or parental leave. You also have a right to continue participating in benefit plans during your leave and to have your seniority continue throughout your leave.
Employment Insurance During Maternity Leave
Maternity and parental leave are unpaid leaves from work. Your employer does not have to pay you wages for the time you are off work.
However, you can receive maternity benefits and parental benefits through federal Employment Insurance. Maternity benefits are available to pregnant employees or employees who recently gave birth and cannot be shared between two parents. When maternity leave is taken, there is a 1-week waiting period where no benefits are paid. Afterwards, maternity benefits will be paid for 15 weeks.
Parental benefits can be shared between two parents. If only one parent takes a parental leave, there is a 1-week waiting period where no benefits are paid, and then that parent can receive benefits for either 35 or 61 weeks. If two parents are sharing parental benefits, they must still wait the 1-week waiting period but are then eligible for either 40 or 69 weeks of shared parental benefits.
An employee can receive both maternity benefits and parental benefits.
For further reading on Maternity and Parental Leave Employment Insurance, please see our page on benefit eligibility.
Are you having problems taking maternity leave in Canada?
If you are encountering difficulties in taking maternity or parental leave, perhaps because your employer is threatening to discipline or terminate you, consider speaking with an employment lawyer at Monkhouse Law. You have a right to maternity leave. Your employer cannot punish you for taking maternity leave.
Monkhouse Law is an employment law firm located in Toronto, focusing on employees’ issues. Give us a call at 416-907-9249 or fill out this quick form. We offer a free 30-minute phone consultation.
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