Ontario Paternity Leave – Know Your Rights

In Ontario, parents are able to take a job-protected leave of absence from their employment following the birth of their child. This is also referred to as “parental leave”. Paternity leave is a form of parental leave; it is a designated leave for fathers to take a leave of absence from work.

In Ontario, job protected parental leave is governed by Employment Standards Act, 2000 (“ESA”) and the parental benefits are governed by the by the federal Employment Insurance Act (“EI”).

ESA Parental Leave – up to 63 Weeks of Unpaid Leave

Under the ESA, both new parents have the right to take parental leave. A “parent” includes a birth parent, an adoptive parent, or a person who is in a relationship of some permanence with a parent of the child.

The job-protected parental leave must begin with 78 weeks since the child is born or placed for adoption and fathers can take up to 63 weeks of job protected parental leave. It is important to note that the rules under the ESA and EI differ.

EI Parental Benefits – up to 61 Weeks of Paid Benefits

The EI program currently offers two options of parental benefits: standard and extended option. Under the standard option, couples are entitled to a total of 40 weeks of parental leave within the 12 months of the birth or placement for adoption of the child. The standard parental benefit can be divided as the couple chooses, provided that one parent can take at most 35 weeks of parental leave. The additional 5 weeks is non-transferrable and if this benefit is not used, the father will lose it. Under the standard option, parental leave is currently paid at 55% of the person’s average insurable earnings (up to $650 per week).

Under the extended option, couples are entitled to  a total of 69 weeks of parental leave within 18 months of the birth or placement for adoption of the child. The extended parental benefit The standard parental benefit can be divided as the couple chooses, provided that one parent can take at most 61 weeks of parental leave. The additional 8 weeks is non-transferrable and if this benefit is not used, the father will lose it. Under the extended option, parental leave is currently paid at 33% of the person’s average insurable earnings (up to $390 per week).

Paternity Leave vs. Parental Leave

Parental leave refers to the time in which parents may take a leave of absence from work due to the birth or adoption of their child. In contrast, paternity leave is a form of parental leave; it is a designated leave for fathers to take a leave of absence from work.

“Parent” According to the Employment Standards Act

According to the ESA, “parent” includes birth parents, adoptive parents, and people in permanent relationships with a parent of a child and who intends on treating the child as their own. The term “parent” intends to encompass all forms of parental relationships for families in Ontario.

Qualifying for Parental Leave in Ontario

In Ontario, new parents are entitled to parental leave if they are employed by an employer covered by the ESA and were employed for at least 13 weeks prior to commencing their parental leave. This does not mean that the parent was actively working during this 13-week period before the beginning of their parental leave; they just need to be employed.

Employment Rights for Parents Taking Paternity Leave

Reinstatement
Generally, when an employee opts to take a paternity leave, they are entitled to return to the same job they had prior to their leave, or a comparable job if the previous role no longer exists. Regardless, the person must be paid, at minimum, the same amount they earned from their employer before they took their leave. In addition, if their wages would have gone up had they stayed with the employer, or if the wages for their role had increased during their leave, the employer is obligated to pay them the higher wage.

Free From Penalty
Employers are not allowed to penalize employees for taking paternity leave. Similarly, an employer cannot penalize an employee for anticipating taking a paternity leave. Employees should be able to inquire and take paternity leave if they so wish. If an employer penalizes or threatens an employee for these reasons, it would be considered a reprisal.

Participating in Benefit Plans
During the course of a paternity leave, employees retain the right to participate in some of their employer’s benefit plans. The employer must continue paying the premiums for the benefit plans that were offered prior to the employee’s leave, unless the employee informs the employer in writing that they will not be contributing their share.

Recognizing Tenure
Despite an employee taking paternity leave, the employee shall continue to earn credit towards their tenure during this time. If an employee decides to take parental leave for a total of 52 weeks (1 year), their tenure with the employer will accrue accordingly.

Speak to a Lawyer

If you have been terminated due to taking a paternity leave, you should consider speaking with a lawyer. Monkhouse Law specializes in helping employees who have been wrongfully terminated and can help ensure you do not miss out on any of your legal entitlements. If you have a question regarding paternity leave, you should contact Monkhouse Law for guidance.

Monkhouse Law is an employment law firm located in Toronto focusing on workers’ 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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