Parental Leave & E.I.

Written on behalf of Peter McSherry

New E.I. Rules

The Federal Government has announced changes to the rights of parents to Employment Insurance benefits which will now be effective in mid- March 2019. Parents whose children are born or adopted after March 17, 2019 will be eligible for the new benefits.

Such parents will be then be entitled to five additional weeks of benefits if they accept the usual 12 month parental leave program or alternatively a further eight weeks should they wish to use the new 18 month period which was introduced last year. There is, however, a further requirement that the two parents agree to divide the time off to care for the new child. This decision must be made once the mother has taken the designated 15 week period of maternity leave. If the couple does not so agree, then the additional time period will not be allowed. The two people cannot double up on benefits paid. There is one cheque per household.

Parents who elect to take benefits over the 18 month period must spread out the benefits over the additional weeks. Presently, a parent who elects 12 months will receive 55% of income to a maximum of $543 weekly. By electing 18 months, the parent will receive 15 weeks at the 55% rate, followed by 61 weeks at 33%. In addition, the expecting mother may start maternity leave up to 12 weeks prior to the date of birth, which is an increase from the prior period of 8 weeks.

Ontario law also allows an unpaid pregnancy leave period of up to 17 weeks, provided that the mother began employment at least 13 weeks prior to the expected date of delivery. Pregnancy leave is not a part of maternity leave. They are complimentary to one another.

There is no law mandating payment for pregnancy leave or parental leave in Ontario. This being said, some companies do offer a “top-up” of usually a defined amount or percentage on top of E.I. benefits.

Protections

Ontario law prevents an employer from adverse conduct due to pregnancy or “family status”. These are human rights protections. Such conduct could lead to compensatory damages for personal suffering, lost income and reinstatement.

In addition, Ontario’s Employment Standards Act requires that the employer reinstate the individual to the position held at the time of the commencement of maternity leave. If this position has become eliminated in good faith, the employer still has an obligation to instate to a “comparable position”. The company could face a claim for lost income until the date of the hearing which may be considerable, where there has been a violation of this obligation.

Alternatively, the employer may face a civil claim for aggravated or moral damages for unfair conduct which led to the termination decision, being influenced by the decision to take maternity leave. This could be a significant claim.

If this comparable position is not possible and one made in good faith, the employer will still owe a notice or severance payment which cannot commence until the date of the expected return to work.

Employees on leave have the right to continue participation in certain benefit plans and continue to earn credit for length of employment, length of service, and seniority. In most cases, employees must be given their old job back at the end of their pregnancy or parental leave.

Let Legal Advice Guide Your Actions

This is a complicated and difficult issue. If you have been treated adversely due to a pregnancy or maternity leave issue, or simply want to know your rights, contact the offices of Guelph employment lawyer Peter McSherry. We can guide you through the issues, help you understand your rights, and defend your position. Contact us online or by phone at 519-821-5465 to schedule a consultation