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Understanding the rights of pregnant employees in Ontario

Pregnant employees or those employees intending to become pregnant, enjoy significant protection under various provincial and federal statutes. This article will explore the protections provided by the Ontario Human Rights Code, Employment Standards Act, and the federal Employment Insurance Act.

Under the Ontario Employment Standards Act (ESA), a pregnant employee is entitled to pregnancy leave. This unpaid leave can commence anytime within 17 weeks prior to the employee’s due date. While the employer is not required to pay the employee’s salary during this leave, it must maintain the employee’s benefits and a guarantee of a position when the employee’s leave is over. As well, the period of leave must be included in any calculation in length of the employee’s seniority for the purposes of benefits.

An employee seeking to take pregnancy leave must give her employer at least two weeks written notice of that intention. However, employees would be well advised to give the employer as much notice as practical in order to make the task of replacing the employee during her leave as painless as possible. The employer is entitled to request a note from the employee’s doctor specifying her due date. The leave must commence on the later of that due date, or the date on which she actually gives birth.

As the actual delivery date is somewhat unpredictable, the ESA provides that, where she delivers earlier than the specified due date, the employee can commence her leave on the date of delivery, as long as she advises her employer in writing within two weeks of the actual delivery date.

After the child is born, the ESA entitles either parent (father or mother) to take parental leave of up to 35 weeks again without pay. As with pregnancy leave, the employer must maintain the employee’s benefits and retain a position available for the employee upon his or her return.

While the ESA does not require the employer to continue salary while the employee is on pregnancy leave, the Employment Insurance Act (Act) does make provision for a degree of income replacement. The Act provides for up to 15 weeks of benefits for pregnancy leave, and a further 35 weeks of parental leave. The latter leave and EI benefits can be shared between the parents. Some employers have “top-up” provisions in their benefit plans that will subsidize the employment insurance payment to compensate the employee for some or all of the lost income.

The employee who takes a parental leave can change his or her mind (caring for an infant is not the easiest thing in the world) and return to work earlier than the specified date by giving the employer written notice at least four weeks before the new return date.

It should be noted by employers and employees that the ESA specifically prohibits employers from dismissing or otherwise penalizing employees as a result of the decision to take a leave. The ESA also prohibits the employer from intimidating an employee with the goal of dissuading him or her from taking a leave on any of these grounds.

While the ESA protects the employee’s right to her position and salary, the Human Rights Code (Code) goes further by prohibiting discrimination in employment on the basis of pregnancy or anticipated pregnancy. The Code prohibits, in Section 5(1) and (2), general discrimination, and specifically discrimination in employment on the basis, inter alia, of sex and family status. Under Section 34 of the Code an employee who believes that she has been discriminated against due to pregnancy or child birth can file a complaint with the Human Rights Tribunal.

The tribunal can hold a hearing to determine whether such discrimination has occurred, and, if so, what remedy the employee is entitled to. The tribunal can award damages based on the actual loss suffered by the employee and as much as $25,000 for “general damages”. The difficult question in such an application is determining whether the termination of employment was due to the pregnancy, or arose as a result of financial issues with the employer, or the employee’s job performance.

In a recent decision of the Human Rights Tribunal, an employee filed a complaint alleging discrimination, based on pregnancy, and for a reprisal for seeking a pregnancy leave. The employer responded that the employee’s termination had nothing to do with her pregnancy. Rather, it was due to her poor attendance record prior to her delivery. The tribunal recognized that the employee had the onus of proving the alleged discrimination. The tribunal pointed out, that pregnant employees can be terminated as long as that termination is not based on her pregnancy. In this case, the tribunal held that the employer properly terminated the employee due to her sporadic attendance rather than the fact of her pregnancy.

Employers should also be aware that the Code prohibits questions during the hiring process that seek to determine if the applicant is, or intends to become pregnant. In one decision of the Human Rights Tribunal, the tribunal in fact held that asking the question of an applicant whether she intends to become pregnant is inappropriate and discriminatory and will constitute a breach of the Code.

It is obvious that the issue of pregnancy and employment can be a minefield. Careful analysis of the facts in each circumstance, and complete legal advice should always be obtained.

Earl Altman
Partner
Garfinkle, Biderman LLP

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Earl Altman

Legal consultant at EA Consulting
Earl Altman was a partner at Garfinkle, Biderman and now heads his own consulting firm. Earl has practiced commercial and employment litigation. Earl’s practice focuses on employment disputes, including acting for employees and employers in wrongful dismissal claims, and in breach of contract and breach of fiduciary duty claims. Read more
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3 thoughts on “Understanding the rights of pregnant employees in Ontario
  • The use of a probationary period is a common business practice when hiring new employees. It is not covered in the Employment Standards Act or under any other law but is valid at common law. This period is used to verify that the selected employee will be able to meet the employer’s expectations; determine the employee’s ability to do the job, and to observe other factors that are important in the employment relationship.

    What exist under ESA is the right to terminate an employee who has worked for you for three month or less without providing notice.

    The usual probationary period is three months or less and must be evidenced in a written agreement (job offer, employment contract or a separate agreement) or it will not be enforceable. A period of three months or longer may entitle an employee to notice and/or pay in lieu thereof if the employee is terminated at the end of the probationary period. If extending the probationary period, a new agreement must be completed and signed by the employee with the new start and end date of the probation period.

    Maternity leave is used in other provinces and under the Employment Insurance Act… it is the same as pregnancy leave under the ESA. In Ontario, an employee is entitled to at least 17 weeks of unpaid leave of absence for pregnancy, providing she has been employed with the employer for at least 13 weeks preceding the estimated date of delivery. That is the law. In addition, parental leave is for a period of 35 weeks without pay for employees who took pregnancy leave.

    An employee cannot be temporarily laid off, terminated or disciplined because she is entitled to, has applied for, or has taken pregnancy leave. As stated by the Ministry of Labour in Ontario,

    “The period of a leave is not included when determining whether an employee has completed a probationary period. If an employee was on probation at the start of a leave, he or she must complete the probationary period after returning to work [from the leave].”

  • Sarah Jane says:

    Hi Shannon,

    In Ontario, probation is defined by the E.S.A. as 3 months regardless of the time the employer assigns as probation. If a pregnant worker is under E.S.A. probation they may not be afforded all the same rights as a worker who has successfully passed that probation. In your example the worker could have been employed for greater than 3 months but less than 9 months when they take pregnancy or parental leave. At anytime during that period the pregnancy or parental leave can be taken as a job protected leave and must be free from discrimination.

    Further it is important that you understand there is no such thing as “maternity leave” any more. It is pregnancy leave and it is parental leave. The distinction between those leaves is important to understand.

    To plainly answer your question, in Ontario workers are not required to have 12 months of employment in order to take a job protected leave. The criteria is 3 months.

  • shannon says:

    I have looked everywhere but I can’t find the answer to this. What happens if you are still on probation when you go on mat leave (the company I am looking into has a nine month probation). I have read that in certain provinces unless you work there for 12 months they don’t have to give you your job back. Is that true in Ontario as well? How does the fact that you are still on probation affect the terms of your leave. Thanks so much!