Parent Employee Rights | Parental Leave |Co-Authors: Bram Lecker & Simon Pelsmakher, Student-at-Law
All about Parent Employee Rights in Ontario
This article is for any Ontario employee who is a parent or contemplating parenthood. Our parent employee rights apply to birth and surrogate mothers, fathers, same sex parents as well as adoptive parents. Canada has some of the most progressive laws in the world supporting expectant parents, working parents and families. Yet, pregnant women frequently grapple with the matter of job security. In fact, any employee contemplating time off for parental leave might wonder whether their job will still be there when they return. And furthermore, you may have questions about your rights in the days ahead. As a working parent, how will you manage work and the demands of your growing family?
Bill 148: Enhancements to Parental leave
On November 22, 2017, the Ontario legislature passed Bill 148, Fair Workplaces, Better Jobs Act, 2017, into law. While media pundits have focused primarily on minimum wage hikes, this Bill also enhanced existing laws with forward-thinking provisions that help working parents. You now have more time to spend at home with your new child. The law already provided birth mothers with 17 weeks of Pregnancy Leave. And now, the government has increased the Parental Leave portion, up to 63 weeks, for either parent. In addition, some women, only entitled to Pregnancy Leave, will now receive more time off.
Unless your employer offers top-up maternity/paternity benefits, taking Pregnancy and Parental leave is considered unpaid time off from work. And this is where our Federal Government steps up to the plate. Under the Employment Insurance (EI) Act, qualifying individuals receive monetary relief, 55% of your pay up to a maximum amount, during your time off.
The Provincial rules governing your right to take time off work for Pregnancy and Parental Leave differ from Federal rules to receive EI Maternity and Parental Benefits. As an expectant parent, you should consult with a Service Canada representative to confirm details of your specific benefit entitlements
Job Security and Parental Leave
Ontario’s Employment Standards Act, 2000 (ESA) governs the fundamental rights for most Ontario workers. This legislation also covers parent employee rights, specifically to address the matter of job security while you are off taking care of your new child.
Your employer cannot penalize you for taking Pregnancy or Parental Leave. While you are off, you remain an employee of the organization. In turn, you are entitled to all your health and other benefits. When you return back to work, the ESA requires your employer to reinstate you to your original job. If it no longer exists, then they must offer you an equivalent position at the same compensation terms as before. And most importantly, your seniority continues to accrue through your pregnancy and /or parental leave.
Skirting the Law
Sadly, some employers try to work around these requirements by terminating employees on parental leave under the guise of “economic hardship”. In Henderson v. Marquest Asset Management Inc. we represented Ms. Henderson after her employer fired her while she was on parental leave. They cited the 2008-2009 global recession as the reason for eliminating her position, along with numerous others.
It turned out that just before Ms. Henderson started her parental leave, she trained a new employee to take on her responsibilities. Surprisingly, that specific position was not part of the job cuts. As a result, the court sided with us. While the global recession indeed, was economically detrimental to this business, they still had a need for our client’s position. Accordingly, when they let her go, they clearly discriminated against her for being on legal parental leave.
Parent Employee Rights: Protection of Family Values
Our courts have not been afraid to reaffirm the rights of all parents, not just those on parental leave. In another case, Hilton v. Norampac Inc., we represented Mr. Hilton in a dispute against his employer for changing his work schedule. Shockingly, they unilaterally put him on a schedule that required him to be on-call every six weeks. He was unable to fulfill this requirement because of his childcare responsibilities. Unsurprisingly, the Supreme Court of Canada upheld the Court of Appeal ruling. And they strongly condemned the practice of employers making unilateral changes to employment terms. Consequently, employees have every right to refuse changes to their employment when it detrimentally impacts their parental obligations.
Parent Employees Rights: Time Off for Emergencies
In addition to the Parental Leave enhancements for new parents, Bill 148 also boosted the provisions for Personal Emergency Leave. Previously, only some eligible employees received these 10 unpaid, but job-protected days off, per calendar year.
Now, all Ontario employees receive this benefit. If you have been employed for one week or more 2 of those 10 days must be paid. And your employer can no longer demand a sick note. Parents can use Personal Emergency Leave, as needed, to stay home with a sick child or when your babysitter cannot make her shift. You can also apply them towards meetings to discuss a problem at your child’s school, if the appointment cannot be made during off hours.
Family Caregiver Leave and Family Medical Leave are two additional job-protected leaves under the ESA. They are available when an employee requires time off to care for ill relatives. Parents can turn to these provisions should their child suffer a serious or terminal illness.
Ontario Human Rights Code
The Ontario Human Rights Code offers additional fundamental guarantees to virtually all Ontario residents. We can pursue work free of discrimination based on race, ethnicity, sex, family status etc. Sadly, it is not uncommon for courts and tribunals to hear cases of human rights violations against pregnant women.
In Ong v. Poya Organics & Spa Ltd., Ms. Ong’s employer fired her a mere one day after she revealed her pregnancy. For this violation of her human rights, Ms. Ong received damages for lost wages. In addition, she received $12,000 in damages for “injury to dignity, feelings and self-respect.” The tribunal upheld her human rights as a pregnant woman. The law shields pregnant women from discrimination right from the moment she reveals her pregnancy or from when it otherwise became apparent.
Through another similar case, that of Wenying Mou v .MHPM Project Leaders, the Human Rights Tribunal of Ontario expanded the definition of disability to include circumstances uniquely faced by pregnant women. We now recognize miscarriages, stillbirths and abortions as pregnancy-related illnesses, along with the mental distress that ensues. If you suffer such an illness, you are entitled to workplace accommodation. Our laws now offer you the same protection as any other person who is disabled while employed.
In our experience, individuals returning from parental leave are sometime more susceptible to discrimination and workplace harassment. Many end up resigning unwillingly for situations that become impossible to manage as working parents.
After your legal extended leave of absence, some employers may start comparing you to the person who filled in for you. New parents frequently require time off to care for sick infants. And they also fall ill more often from viruses their kids bring home from daycare and school. For this, your manager may unnecessarily scrutinize you for not being fully productive.
Consequently, they could demote you, subject you to an unreasonable workload or expose you to underhanded harassment, all in the hopes of forcing you to quit. These are classic circumstances of a constructive dismissal.
Parent Employee Rights: Seeking Legal Help
Our laws have come a long way to uphold parent employee rights. They allow working parents every opportunity to balance your work obligations with the challenging responsibilities of being pregnant and raising children. Sadly, there are employers who count on you not understanding your rights.
And that is where we can help. If you are struggling with a situation at work that affects your ability to also be a parent, contact us. A free assessment of your situation will allow us to determine whether your rights have been violated.
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