Maternity leave and parental leave are outlined separately under the Employment Standards Act.
Section 50 of the Act deals with maternity leave and provides for unpaid leave taken by employees giving birth to a child. The length of maternity leave an employee is entitled to depends on when she requests the leave and whether there are extenuating circumstances surrounding the birth or termination of a pregnancy.
An employee who requests leave while she is pregnant is entitled to up to 17 consecutive weeks of unpaid leave. Such leave must begin no earlier than 13 weeks before the expected birth date, and no later than the actual birth date.
If maternity leave is not requested until after the birth of a child, the employee is entitled to up to 17 consecutive weeks of unpaid leave beginning on the date of birth. An employee who requests leave after the termination of the employee’s pregnancy is entitled to up to 6 consecutive weeks of unpaid leave beginning on the date of the termination of pregnancy.
However, the ESA allows the leave to be extended by an additional six consecutive weeks of leave if, for reasons related to the birth or termination of the pregnancy, she is unable to return to work when her leave ends.
An employer does not have any discretion as to whether or not to grant a maternity leave. If an employee requests a leave, the employer must grant the leave on the dates requested. While the Act sets out a procedure for requesting the leave, an employee’s failure to meet the strict requirements of the act will not disentitle her from taking the leave. Provided the employer is aware of the request for the leave, the employee will be entitled to the leave.
Section 51 of the Act deals with parental leave and provides for unpaid leave to the natural or adoptive parents of a child. The length and timing of the leave depends on the relationship of the employee to the child.
If a birth mother takes maternity leave, she is entitled to an additional 61 consecutive weeks of unpaid leave, beginning immediately after the end of the maternity leave, unless the employer and the employee agree otherwise.
The ESA provides for up to 62 consecutive weeks of unpaid parental leave for a parent, other than an adopting parent, who does not take maternity leave. The leave must begin anytime within 78 weeks of the birth of the child.
The ESA also provides for up to 62 consecutive weeks of unpaid parental leave for an adopting parent, which must begin within 78 weeks after the child’s placement with the parent.
In the event the child has a physical, psychological or emotional condition requiring an additional period of parental care, the employee is entitled to up to an additional five consecutive weeks of unpaid leave beginning immediately after the end of the parental leave.
An employer is entitled to require the employee to establish a specific end date to the parental leave period. Further, employees may not change the duration of parental leave without the employer’s agreement once leave has commenced. An employer is not required to return an employee to the job before the leave expires. Any such change must be by agreement with the employer.
Information provided by Ryan Anderson and Natasha Jategaonkar, employment lawyers with Mathews Dinsdale & Clark LLP. The information provided in this article is necessarily of a general nature and must not be regarded as legal advice. For more information about Mathews Dinsdale & Clark LLP, please visit mathewsdinsdale.com.