A recent Globe and Mail article highlights the fears that new parents face as they contemplate returning to work after a parental leave. It also highlights the issues employers must address when those employees return to work.
Since our employer clients often raise questions about post–leave matters, we would like to offer some helpful tips on this issue:
- Review your vacation and leave policies: Employers should be mindful of the policies that may have an important impact on an employee both during and after returning from a leave. For example, the Ontario Employment Standards Act, 2000 provides that vacation time accrues during a parental leave, but there may be a different calculation of vacation pay during the leave, particularly for commissioned or non–salaried employees. While benefit coverage must continue during the leave, some benefit types may be affected by the employee’s absence. Finally, if the employer tops up an employee’s pay during a parental leave, the conditions of the top–up should be discussed in advance of the leave.
- Check–in: There is no prohibition against touching base with an employee about his or her return to work while that employee is still on leave. And while there is no rule as to when and how to check–in, we recommend doing so four to six weeks prior to the return to work. In that check–in discussion, the employer should detail any changes to organizational structure, reporting or projects that affect the employee; advise the employee about any policy changes made during the leave; and arrange for any training the employee missed during the leave. Further, it is a good practice to check–in after the employee returns to ensure he or she is re–integrating successfully.
- Fulfill the reinstatement obligation: An employee on a parental leave must be returned to the same position they occupied prior to the leave so long as that position still exists. However, a workplace reorganization during the leave may mean that the role has been eliminated. If this is the case, the employer has an obligation to reinstate the employee to a comparable position. If there have been any changes to the employee’s position, be upfront with the employee about the changes and the impact on the entire workplace so that the employee does not feel targeted for having taken a leave of absence.
- Be flexible: Switching from caregiver–mode to work–mode from one day to the next can be difficult, so it may be in both the employer and the employee’s best interests to be flexible in the return to work plan. For instance, the employer should canvass whether the employee wishes to use accrued vacation time to extend the leave or to supplement a graduated, “ramp–up” return to work.
- Consider accommodation obligations: An employee returning from a parental leave now has new obligations. These obligations may relate to caregiver needs, for which an employee may require accommodation (flexible schedules, time off, etc.). Parents who demonstrate that they have a caregiving need (and not simply a preference) that cannot be met by anyone else are protected by human rights legislation—i.e. on the basis of family status. In response to requests for flexible schedules, etc., employers will need to analyze the need, the request and the applicable workplace factors before making a decision as to whether and how to accommodate the employee.
The above–noted considerations can often result in complex legal issues and so our final tip is for employers to seek legal advice from an expert in workplace human rights before drawing any hard and fast line in the sand with an employee returning from a parental leave. With flexibility, discussion, and counsel, the return to work process after such leaves can be a positive one for both employees and employers.
By: Jennifer Heath and Parisa Osborne
Rubin Thomlinson LLP
Employment law firm at Rubin Thomlinson LLP
Rubin Thomlinson LLP is a Toronto-based employment law firm dedicated to finding optimal legal solutions to challenging workplace issues. Rubin Thomlinson provides expert counsel to employees and employers on all legal issues pertaining to the workplace such as hiring, retaining and terminating employees; executive compensation and contracts; accommodation issues; and workplace human rights. Rubin Thomlinson is also considered a leading authority in the area of workplace harassment, and workplace investigations and reviews.
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