Employers are not required to provide employee benefit plans. However, if an employer does decide to provide them, the rules against discrimination under the ESA must be complied with.
The anti-discrimination rule
The ESA prohibits discrimination between employees or their dependants, beneficiaries or survivors because of the age, sex or marital status of the employee.
There are some exceptions to the anti-discrimination rules. They are complex. If you require further information, please contact the Employment Standards Information Centre at 1-800-531-5551.
The anti-discrimination rule applies to benefit plans including:
- superannuation, retirement and pension benefits;
- termination benefits;
- death benefits (including life insurance plans);
- disability benefits (including short-term and long-term disability plans);
- sickness benefits;
- accident benefits; and
- medical, hospital, nursing, drug or dental benefits.
The rule against discrimination applies to both the plan’s contribution requirements and its benefit payments (though as noted, there are some exceptions).
Grounds on which discrimination is not allowed
Employees and their dependants, beneficiaries or survivors must not be treated differently because of the employee’s age, sex or marital status.
An employer cannot discriminate because of the age of an employee if the employee is 18 or over but under 65.
An employer cannot discriminate between male and female employees, or against pregnant employees. Also, there cannot be a distinction between employees because they are, or are not, the head of a household or the primary wage earner.
An employer cannot discriminate between single and married (whether same or opposite-sex couples) employees, including those who live in common-law marriages (whether same or opposite-sex couples), or against unmarried employees supporting dependent children.
While an employee is on a leave of absence: Certain benefit plans
An employee who is on pregnancy, parental, sick, family responsibility, bereavement, declared emergency, family caregiver, family medical, critical illness, organ donor, domestic or sexual violence, child death or crime-related child disappearance leave has the right to continue to participate in pension plans, life insurance plans, accidental death plans, extended health plans and dental plans during their leave.
An employee who is on a reservist leave does not have the right to continue to participate in these plans during their leave. However, if the employer postpones the employee's reinstatement, the employer is required to pay the employer's share of premiums for certain benefit plans related to their employment and allow the employee to participate in such plans for the period during which the return date is postponed.
A female employee may be entitled to disability benefits during that part of the leave during which she would not have been able to work for health reasons related to her pregnancy or childbirth.
Other benefit plans may allow employees on other types of leave that are not provided for in the ESA to continue to participate in the plan while they are on leave. In that case, employees on pregnancy, parental, sick, family responsibility, bereavement, declared emergency, family caregiver, family medical, critical illness, organ donor, reservist, domestic or sexual violence, child death or crime-related child disappearance leave are also allowed to continue to participate in such plans while they are on leave (this includes any leave negotiated between an employee or union and an employer that is longer than the ESA provides).