Employment Insurance & Parental Leave

Written on behalf of Peter McSherry

A new federal plan called the Parental Sharing Benefit is intended to encourage both new parents to take an active role in the care of newly born and newly adopted children.

Parents with children born after March 17, 2019, are eligible to make use of the new parental sharing benefit for employment insurance (EI). This right is available to mothers, fathers and same-sex parents who agree to share parental benefits and are eligible for EI. The new law also applies to newly adopted children in addition to children born to the parents.

Maternity Benefits vs. Parental Benefits

Maternity leave benefits are solely for the birthing parent. These are granted for a maximum of 15 weeks and are set at the same coverage of parental leave, at 55% of insurable income to a maximum of $573 per week. The amount paid to the parent may be increased if the employer “tops up” the benefit. Maternity leave cannot be shared among parents.

Parental Leave

Parental leave follows maternity leave. Where both parents are eligible and agree to divide the time, they can choose to split the maximum parental leave period, which has been extended under the new benefit plan by an additional 5 or 8 weeks, as explained below.

Requirements

Both parents must first be eligible for EI. They both must choose the same parental leave option (standard vs. extended). The plans have each been extended by an additional 5 or 8 weeks of leave, depending on which option is chosen. However, to maximize the time allowed, the benefit must be shared. One parent is not entitled to take the full extended leave themselves.

Standard Parental Leave

The standard option allows for a collective total of 40 weeks, an increase from the prior cap of 35 weeks if both parents choose this option. If only one parent is making use of the leave, they are only entitled to take 35 weeks.

Extended Parental Leave

The extended option originally provided 61 weeks of leave. Now there an additional 8 weeks of parental leave are provided for a collective total of 69 weeks. Again, this only applies if both parents share the leave. If only one parent makes use of parental leave, they will be capped at 61 weeks. The extended option provides EI benefit coverage at 33% of the maximum insurable sum.

When two parents choose to share either the standard or extended parental leave period, they may overlap their leave in order to be home at the same time or take the leaves consecutively in order to maximize the time that a parent is at home with the child.

Job Protection

Any employee who takes parental leave is entitled to return to their prior or comparable position upon return to active employment. Benefits from employment are to be continued during the leave period, as is seniority accumulation.

Notice Formalities

The employer must receive at least two weeks’ advance notice of the employee’s intent to take parental leave. Upon return to employment, particularly where there may be a change in the expected return to work date, the employer must receive four weeks’ advance notice. Similarly, should the employee decide not to return to work, the company should also receive four weeks’ advance notice to this effect.

Issues

If the employer refuses to accommodate these requests for parental leave, it will be encountering major problems. It will open itself to a human rights remedy for failure to accommodate family status and also potential civil claims.

Ontario law allows for two methods of presenting a human rights complaint. The first is to present the case before the Ontario Human Rights Tribunal. The second process is to sue for the human rights remedy in the civil courts. To take this latter step, there must be a “companion” claim then commenced as part of this action. Usually, this is a claim for wrongful dismissal but it could be any other related case, such as defamation, for example.

Employees’ Take Away

This is an important new entitlement under Canadian law. If you are expecting a new addition to your family, get advice ahead of time so that you can plan your leave in advance.

Let Legal Advice Guide Your Actions

Get advice and know your rights. Contact the offices of Guelph employment lawyer Peter McSherry. We can guide you through the issues and defend your position. Contact us online or by phone at 519-821-5465 to schedule a consultation.