Ontario’s Employment Standards Act, 2000 provides minimum standards of employment for maternity leave in Ontario. Every employee in Ontario has the right to maternity leave.
Note: Not all employees in Ontario work under the Employment Standards Act, 2000. If you work for a federally regulated industry, go to Maternity Leave Canada,, which explains your rights under the Canada Labour Code.
Employees Have a Right to Maternity Leave
Pregnant employees in Ontario have a right to take maternity leave. Your right to maternity leave depends on your due date. You are entitled to a maternity leave only if you started working for your employer at least thirteen weeks before your due date. You are not required to actually work all thirteen weeks. If you commenced your employment thirteen weeks before your due date, you have a right to maternity leave.
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.
As 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.
Parents and Adoptive Parents Have a Right to Parental Leave
Employees in Ontario also have a right to take parental leave. These employees must also have commenced employment at least thirteen weeks before taking the parental leave. Parents as well as adoptive parents have a right to parental leave.
Parental leave is not the same as maternity leave. A birth mother can take both a maternity leave and a parental 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 a 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 a parental leave, planning a parental leave, or for being eligible to take a parental leave.
Maternity Leave is up to 17 Weeks Off
A pregnant employee in Ontario is entitled to take 17 weeks off work. This is unpaid time off. If you have taken all 17 weeks of leave and are still pregnant, you may continue on maternity leave until the baby is born.
You may take a leave shorter than 17 weeks if you wish. However, your maternity leave must be taken all at once. For example, you cannot take 10 weeks off, return to work for 3 weeks, then take the remaining 7 weeks off. Once you return to work after taking your leave, your maternity leave is over.
You are able to take maternity leave 17 weeks before your due date, at the earliest. At the latest, you can take your maternity leave on the baby’s due date. If the baby is born before the due date, you can take your maternity leave on the day the baby is born. You can choose to take your maternity leave at any time between these two dates.
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 a 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 two weeks’ written notice before taking the leave. Your employer has a right to request a certificate from your doctor stating the baby’s due date, so the employer can know you are taking the maternity leave at the right time.
If you later change your mind and decide you wish to take your maternity leave at a later date, you must give your employer new written notice two weeks before the original date.
Although you must give your employer notice of your maternity leave, if you fail to give notice you will not lose your right to maternity leave.
Parental Leave is up to 61 or 63 Weeks Off
If you are a birth mother on maternity leave, you usually must begin your parental leave as soon as the baby is born.
All other 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, custody and control.
Birth mothers who take maternity leave can take a parental leave for up to 61 weeks. All other new parents are entitled to up to 63 weeks off. This is unpaid time off work. Like maternity leave, parental leave must be taken all at once. A new parent cannot take half their parental leave, return to work, and then later take the second half of their parental leave. You must take the full parental leave in one go.
Give Your Employer Notice of Parental Leave
Like maternity leave, new parents wishing to take parental leave must give their employer at least two 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. If you don’t, your employer is supposed to assume that you will take all 63 weeks available to you. If you determine at this point that you wish to return to work earlier than 63 weeks, you must give your employer four weeks’ written notice of your expected return date.
Failing to give the employer notice of your planned parental leave does not mean you lose your right to take parental leave.
You Have a Right to Your Job Back After Maternity Leave
If you have taken maternity leave or a parental leave, you have the right to return to your job. 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. Your wages cannot be reduced.
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 a 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 on 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 through federal Employment Insurance. Maternity benefits are available to pregnant employees or employees who recently gave birth and cannot be shared between two parents. Maternity benefits can be received for up to 15 weeks, with a weekly max of up to $638.
Parental benefits can be shared between two parents. Each parent must choose the same option: either standard parental benefits or extended parental benefits. Standard parental benefits can be received for up to 35 weeks, or up to 40 weeks if shared, and has a weekly max of up to $638. Extended parental benefits can be received for up to 61 weeks, or 69 weeks if shared, and has a weekly max of up to $383.
For further reading on Maternity and Parental Leave Employment Insurance, please see benefit eligibility.
If You Are Having Problems Taking Maternity Leave
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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