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.
Garfinkle, Biderman LLP
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