Area of Law: Employment Law
Answer Number: 1600
Pregnancy and Parental LeaveRegion: Ontario Answer Number: 1600
In Ontario, the Employment Standards Act provides eligible employees who are pregnant, or are new parents, with the right to take unpaid time off work. There are two types of leave available to employees: pregnancy leave for pregnant women, and parental leave for both mothers and fathers.
Under the federal Employment Insurance Act, Employment Insurance (EI) pays eligible employees maternity and/or parental benefits during the period he or she is off work on pregnancy or parental leave.
This topic deals specifically with the amount of time-off allowed for pregnancy and parental leave and the rules governing the types of benefits under the Employment Standards Act. For information on the payment of benefit amounts paid by Employment Insurance, please refer to Maternity and parental benefits.
Most employees are entitled to pregnancy leave if they commenced their employment as a full or part-time, permanent or contract employee, at least 13 weeks before the expected birth date. This means that the employee does not have to actively work the entire 13 weeks prior to the due date, only that she be hired at least 13 weeks before the baby is expected to be born. A pregnant woman has the right to take up-to 17 weeks of pregnancy leave, anytime from 17 weeks before the baby is due. Once the baby is born, she may also qualify for parental leave.
To get pregnancy leave the employee must give the employer at least two weeks’ written notice before the leave starts, and, if the employer requests it, provide a medical certificate with the estimated due date. If she has a medical condition or emergency that requires her to stop working right away, she can start her leave without the two weeks’ notice. However, within two weeks from the day she left, she must give her employer a medical certificate confirming her medical emergency and the expected date of birth.
The requirements for a new parent to take parental leave are the same as for pregnancy leave: they can be a full-time, part-time, permanent or contract employee, and they must have been employed for at least 13 weeks before commencing the parental leave.
The term “parent” includes:
- a birth parent;
- an adoptive parent (whether or not the adoption has been legally finalized); or
- a person who is in some sort of permanent relationship with a parent of the child and who plans on treating the child as his or her own. This includes same-sex couples.
Parental leave is not part of pregnancy leave and so a birth mother may take both pregnancy and parental leave.
Birth mothers who take pregnancy leave are also entitled to parental leave of up-to 61 weeks. Birth mothers who do not take pregnancy leave and all other new parents are entitled to 63 weeks of parental leave. Therefore, a natural mother can combine pregnancy and parental leave to take up-to 78 weeks of unpaid leave in total.
Both the mother and the father can take parental leave, however, there is a combined maximum parental leave of up-to 63 weeks. Parents have the option of taking their parental leave at the same time, or one after the other, as long as the total combined parental leave does not exceed 63 weeks.
If the child was born or came into the custody, care and control of the employee before December 3, 2017, a birth mother who takes pregnancy leave may also take up-to 35 weeks of leave, and all other new parents may take up-to 37 weeks of parental leave.
Parental leave may begin no later than 78 weeks after the child is born or comes into the employee’s custody, care and control for the first time. There is a one week waiting period, however, before benefits are paid.
Normally, a leave ends after the employee has taken all the time they are eligible for. However, there are special rules in certain circumstances. If the 17 week pregnancy leave has ended and the child has not been born, the pregnancy leave will continue until the child is born.
If an employee has a miscarriage or stillbirth more than 17 weeks before her due date, she is not entitled to pregnancy leave.
However, an employee who has a miscarriage or stillbirth within the 17-week period preceding the date the baby is due, is eligible for pregnancy leave.
Pregnancy leave for an employee who has a miscarriage or stillbirth ends on the date which is the later of:
- 17 weeks after the leave began, or
- 12 weeks after the miscarriage or stillbirth.
Therefore, an employee who has a stillbirth or miscarriage will have a pregnancy leave of at least 17 weeks.
If the mother becomes ill during her pregnancy but while not yet receiving benefits, she will be entitled to Employment Insurance sickness benefits. Maternity or parental benefits can also be combined with other types of special benefits, such as sickness benefits. Because there are different parental benefit options, the number of weeks benefits can be paid varies. Please refer to Employment and Social Development Canada (ESDC) for more information.
Returning to work
Employees on pregnancy or parental leave have several rights, including the right to reinstatement of their job. In most cases, under the Employment Standards Act, an employee who takes a pregnancy or parental leave is entitled to:
- the same job the employee had before the leave began; or
- a comparable job, if the employee’s old job no longer exists.
In either case, the employee must be paid at least as much as he or she was earning before the leave. If the wages for the job increased while the employee was on leave, or would have increased if he or she hadn’t been on leave, the employer must increase the employee’s wage when he or she returns from leave. In addition, while on either pregnancy or parental leave, the employee continues to participate in benefit plans, such as health and life insurance, dental plans and so on.
If employees want to change the day of their return to work, they must give the employer at least four weeks’ notice in writing, before the day they were supposed to return.
For more information about pregnancy or parental leave, contact the Employment Standards office at the Ministry of Labour, or visit labour.gov.on.ca.
A criminal record will appear on an employment police check and will affect your ability to get or keep a job. To erase your criminal record, call toll-free 1-800-874-2652 or learn more at Parole Board of Canada. It’s easier than you think.
For legal advice and assistance with employment matters, contact our preferred Employment lawyers, Samfiru Tumarkin LLP .
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