Ontario Maternity Leave: Rights Upon Return & New Job Protection for Surrogacy/Adoption

How can new parents be expected to focus on caring for their children when worried about job security? Many employees returning from leave face challenges like wrongful termination, demotions, or unfair changes to their roles. Ontario's maternity, parental, and paternity leave policies are crucial for safeguarding job security, allowing parents to take time off without the worry of being replaced.

However, not all parents receive equal protection. Those who adopt or have children through surrogacy often struggle to access the same benefits as birth parents. Ontario is working to change this with a new 16-week job-protected parental leave for adoptive and surrogate parents, ensuring more equitable support for all families. Although improvements have been made, issues such as the absence of maternity leave top-ups and the unavailability of EI maternity benefits for non-birth parents still need to be addressed. Continued advocacy is needed to close these disparities and provide equal rights to all parents, regardless of how they grow their families.

Returning from Maternity Leave: Your Right to the Same or Similar Job

Under Ontario’s Employment Standards Act (ESA), employees who take maternity or parental leave have the right to:

• Return to the same position they held before leave
• If that position no longer exists, return to a comparable position with the same pay and benefits
• Be free from penalties, termination, or discrimination due to taking leave

Unfortunately, some employers do not comply with these legal obligations. Employees may return to work only to find that their responsibilities have been reduced, their salary has been cut, or they are pressured to resign. In some cases, employees are outright terminated—a clear violation of their rights.

If this happens, consulting an employment law firm like Lecker & Associates is crucial to ensure you receive proper severance or reinstatement.

Job-Protected Leave for Parents Through Surrogacy & Adoption

Starting in 2025, Ontario is introducing a 16-week job-protected leave for parents who welcome a child through adoption or surrogacy.

What This Means for Parents:

• Ensures job security while adjusting to life with a new child
• Allows parents to take time off without fear of termination
• Bridges the gap between birth parents and non-birth parents who previously had fewer protection

This is a significant step toward greater parental leave equity, but there are still limitations. Unlike birth mothers, parents using surrogacy or adoption will not have access to maternity leave top-ups or EI maternity benefits unless federal policies change.

If you are returning to work after a leave and are subjected to unfair treatment, such as changes to your role, a reduction in hours, or termination of employment, it is crucial to know your rights.

Consult with an employment lawyer to discuss your options and ensure you are protected under Ontario’s employment laws.

What Happens if You're Terminated During or After Maternity Leave?

Termination during or after maternity leave may violate human rights and employment laws. If you have been let go, consider these key factors:

1) Did Your Employer Follow the Law?

Employers cannot terminate or change your role due to pregnancy, maternity leave, or parental leave. If they do, you may have a case for wrongful dismissal or human rights violations.

2) Were You Given Proper Severance?

If you are terminated, your employer must provide severance pay based on your tenure, age, and position. Many employers offer less than what employees are entitled to, so it’s essential to have your severance package reviewed.

3) Were You Given a Similar Position Upon Return?

If your job is eliminated, your employer must place you in a comparable role with the same pay and benefits. If they fail to do so, this may be ground for legal action.

Short-Term Disability in Ontario & Parental Leave

Short-term disability benefits can provide additional protection for new parents facing medical complications after birth or during parental leave. If a health condition prevents you from working, you may qualify for short-term disability benefits in Ontario before transitioning to maternity or parental leave. However, insurance companies often deny claims, particularly for conditions related to stress, anxiety, or postpartum recovery, making legal representation necessary in some cases. Additionally, if a disability prevents you from returning to work after parental leave, you may be eligible for long-term disability (LTD) benefits. Unfortunately, some employers attempt to terminate employees rather than comply with their duty to accommodate, highlighting the importance of understanding your rights.

Protecting Your Employment Rights as a New Parent

Understanding your rights is essential when returning from maternity leave or taking job-protected leave for adoption or surrogacy. Ontario law ensures that your position remains secure, but challenges like wrongful termination, denial of reinstatement, or issues with disability benefits can arise. If you face any of these concerns, consulting with an employment lawyer can help safeguard your rights.

Additionally, if you are let go, reviewing your severance package is crucial to ensure it reflects your years of service and entitlements under the ESA. Taking proactive steps can help you navigate workplace challenges with confidence.

If you have concerns about your employment rights, speaking with an Ontario employment lawyer can provide clarity on your options and help ensure you receive the protections you’re entitled to.

Book a no-charge initial assessment today to review your options.