Maternity Leave in Ontario: Employer Obligations

In Ontario, maternity leave is referred to as “pregnancy and parental leave” in Ontario’s Employment Standards Act, 2000. In this article, we will review the options available in Ontario concerning maternity leave (pregnancy and parental leave). Maternity leave is not to be confused with EI maternity benefits, which are discussed below.

Please note that we cover pregnancy and parental leaves as it would apply to an employee working under the current Employment Standards Act. There are some transitional provisions in the law and different rules for pregnancy and parental leave prior to January 1, 2018. We recommend speaking to an employment lawyer before pursuing legal action against an employer for any maternity leave-related issues. 

How Long is Maternity Leave in Ontario?

Pregnancy leave (often called maternity leave) is up to 17 weeks under the Employment Standards Act. The earliest day it can be taken is 17 weeks before the due date. The latest it can start is the earlier of:

  1. the due date or 
  2. the day on which the employee gives birth. 

If the worker is entitled to parental leave, then the pregnancy leave ends 17 weeks after it began. If she is not entitled to parental leave, then it is on the later of:

  1. 17 weeks after the pregnancy leave began or
  2. 12 weeks after the birth, still-birth, or miscarriage

Paternal leave should start as soon as pregnancy leave (or maternity leave) comes to an end, unless the child is not in the parent’s custody, care, and control (for instance, if they must stay under the hospital’s care). 

If the parent did not take pregnancy leave, then parental leave must begin within 78 weeks after the child comes into the custody, care, and control of the parent. 

If an employee takes pregnancy leave, they can take up to 61 weeks of parental leave. If they did not, they can take up to 63 weeks. 

Qualifying for Maternity Leave or Parental Leave

Only pregnant employees have a right to take pregnancy leave. An employee is eligible for unpaid pregnancy leave so long as her due date falls at least 13 weeks after she commenced employment.

Both parents and adoptive parents have a right to parental leave. To qualify for parental leave in Ontario, you must have worked 13 weeks for your employer. However, those 13-weeks do not have to be active, you could be laid off, on vacation, or on another leave during all or part of that 13-week period. 

Employer’s Legal Duties During and After Maternity Leave

During maternity leave in Ontario, the employer does not have an obligation to pay wages. Pregnancy and paternal benefits are instead covered under Employment Insurance (“EI”). An employer can choose to top up the EI benefits, but they are under no obligation to do so. 

You need to have completed 600 hours of insurable work in the year before the start of your claim or since the start of your last EI claim to receive maternity and/or parental EI benefits. Until September 25, 2021, you can receive a one-time credit of 480 insurable hours to meet the 600 hour requirement. Only workers who are pregnant or recently gave birth are eligible for maternity benefits while both parents and parents of adopted children can receive parental benefits.

Aside from pay, there are several employer obligations during maternity leave, or any other type of leave, in Ontario under the Employment Standards Act. These include:

  1. During the leave, the employer must allow the employee to continue participating in benefits such as pension plans, life insurance, and extended health benefits. The employer must continue making the employer-side contribution unless the employee has informed in writing that they do not want to continue participating in the plan or will not be paying the employee-side contributions
  2. The employer must include the leave period in any calculation of the length of the employment, length of service, and seniority
  3. Upon return, the employer must be reinstated to the same position they held before, or a comparable position

If an employer has failed to provide any of the above, an employment lawyer can help secure these rights. 

Returning from Maternity Leave

Upon returning from maternity leave, pregnancy leave, or parental leave, the employer has an obligation to reinstate the person in the same job or a comparable one. Failing to do so can constitute discrimination on the basis of the person’s sex or family status. It can also be seen by courts as reprisal for the person asserting their legal rights. If your employer failed to reinstate you after maternity leave or only offered a demoted position, it is best to speak to an employment lawyer about your legal options. 

Even if an employer has a bona fide reason for the termination, such as an office shutting down due to financial turmoil or the employee’s own behaviour, it is still prudent to speak to an employment lawyer. Unless the employee’s behaviour meets the threshold of willful misconduct (which is a difficult standard to meet), the employee is still entitled to reasonable notice or pay in lieu of reasonable notice. The employee would be entitled to such reasonable notice if they were terminated without just cause or if they were constructively dismissed through a fundamental change in the employment contract.

In this video “Maternity and Parental Leave in Ontario” [3:38 min], Employment Lawyer Andrew Monkhouse speaks about maternity and parental leave and what workers are entitled to regarding their positions at work.

Being a new parent is stressful enough, the last thing anyone needs is to add a dispute with their employer on top of it. Don’t face these challenges alone.

Employment Lawyers at Monkhouse Law specialize in Employment Law, Human Rights Law, and Disability Insurance Law. We serve employees, independent contractors, and employers, and strive to get optimal results for every client through skilled advocacy and research on each matter. We have successfully represented clients before all levels of court in Ontario, including the Superior Court, the Divisional Appeals Court, and the Court of Appeal and have also appeared before the Supreme Court of Canada.

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