Maternity/Parental Leave and Benefit Eligibility

It has been over a year since the government provided the options for new parents to take up to 18 months of parental leave instead of the previous 12 months. However, with these changes come new questions and confusion for both employees and employers.

Employment Insurance (“EI”) provides financial assistance to workers who have stopped receiving their pay, which can be by reason of termination, sickness or care for a newborn child.

EI Maternity benefits (also referred to as pregnancy benefits) are offered to biological mothers for a maximum of 15 weeks.

EI Parental benefits are offered to parents who are caring for a newborn or a newly adopted child. Standard parental benefits can be paid to a maximum of 35 weeks and must be claimed within 52 weeks after the week the child was born. The weekly benefit rate is 55% of the claimants’ average weekly insurable earnings to a maximum of $562.00. Two parents can share this benefit. (Adipex)

Extended parental benefits were introduced on December 3, 2017, and can be paid for a maximum of 61 weeks and must be claimed within a 78 week period. The weekly benefit, in this case, is 33% of the claimant’s average weekly insurable earnings to a maximum of $337.00. Two parents can share this benefit.

There are eligibility requirements for EI Maternity/Parental Benefits:

– Employed in insurable employment; (ex. not an independent contractor)
– Meet specific criteria for receiving EI;
– Earnings are being reduced by more than 40%; and
– Have at least 600 hours of insurable employment during the qualifying period.

With the assistance of benefits, employees have the ability to take time off work and receive some financial assistance since employees are entitled to the leave of absence but are not required to be paid by their employers.

For the employee to be entitled to the job-protected leave they must have been employed for more than 13 weeks prior to the leave and provide at least 2 weeks written notice before the day the leave is to begin. The employer may also require a certificate from a medical practitioner stating the due date.

An employee wishing to take parental leave is also entitled to a leave of absence, without pay provided they comply with the necessary conditions.

Once parental leave has started, it must be taken all at one time; however, the employee may elect not to take the full parental leave permitted, and choose to return to work earlier with notice to their employer.

Employers may also offer top-up programs to employees to help to bridge the gap between an employee’s regular income level and the EI Benefits.

There are policies that govern these top-ups to ensure that they do not stop the payment of EI:

– The payment and the employee’s EI weekly benefits cannot exceed the employee’s normal weekly wage earnings — 100% of gross salary; and,
– The payment is not used to reduce other accumulated employment benefits (i.e. banked sick leave, vacation leave credits, or severance pay).

As employers do not have an obligation to provide any pay during the leave, employers have leeway with what they are offered in a top-up in both the percentage and number of months the top-up would extend to. In addition, employers can include conditions and additional commitments as requirements for employees to opt into these benefits ex. a commitment to stay with the company for one year after a return from the leave. While employees are not obligated to accept the conditions, if they chose not to accept then they will be ineligible to receive the top-up program.

Regardless of the employee’s decision to receive supplementary top-up he or she would still be permitted to time off and the EI benefit discussed above.

Following the leave, employees are entitled to reinstatement in the same position or a comparable one if the position no longer exists. Employers are not permitted to replace the individual and then terminate their employment because the individual was on leave. Despite legislation attempting to prevent this, it unfortunately still occurs. Employers open themselves up to additional liabilities in such instances. Employers have been found to owe loss wages, extended notice entitlements, coverage for lost opportunity to collect parental leave and general damages due to discriminatory conduct.

It is important for employees and employers to understand their rights and obligations as it relates to job-protected leaves. Should you be an employer or employee and have questions about these obligations, please contact Monkhouse Law today.

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