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Pregnant employees have the right to take pregnancy leave of up to 17 weeks of unpaid time off work. In some cases the leave may be longer. Employers do not have to pay wages to someone who is on pregnancy leave.

All new parents have the right to take parental leave – unpaid time off work when a baby or child is born or first comes into their care (such as through adoption). Birth mothers who take pregnancy leave are entitled to up to 61 weeks’ leave. Birth mothers who do not take pregnancy leave and all other new parents are entitled to up to 63 weeks’ parental leave.

Parental leave is not part of pregnancy leave; a birth mother may take both pregnancy and parental leave. In addition, the right to a parental leave is separate from the right to pregnancy leave. For example, a birth father could be on parental leave at the same time the birth mother is on either pregnancy leave or parental leave.

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 back their old job at the end of their pregnancy or parental leave.

An employer cannot penalize an employee in any way because the employee is or will be eligible to take a pregnancy or parental leave, or for taking or planning to take a pregnancy or parental leave.

Ontario’s ESA and the federal Employment Insurance Act

The Employment Standards Act, 2000 (ESA) provides eligible employees who are pregnant or are new parents with the right to take unpaid time off work.

In contrast, the federal Employment Insurance Act provides eligible employees with maternity and/or parental benefits that may be payable to the employee during the period the employee takes an ESA pregnancy or parental leave.

The rules governing the right to take time off work for pregnancy and parental leave under the ESA are different from the rules regarding the payment of maternity benefits and parental benefits under the federal Employment Insurance Act. For example, a new father may choose to commence a parental leave under the ESA up to 78 weeks after the child is born. However, there may be restrictions on accessing the employment insurance parental benefits at that time. It is extremely important that employees obtain information about their rights to EI benefits if they are considering taking a pregnancy or parental leave under the ESA. For information about maternity and parental benefits, contact Service Canada’s Employment Insurance Automated Telephone Information Service at 1-800-206-7218.

Pregnancy leave

Pregnant employees have the right to take pregnancy leave of up to 17 weeks, or longer in certain circumstances, of unpaid time off work.

Qualifying for pregnancy leave

A pregnant employee is entitled to pregnancy leave whether the employee is full-time, part-time, permanent or on a term contract, provided that the employee:

  • is employed by an employer that is covered by the ESA,
    and
  • started employment at least 13 weeks before the date the baby is expected to be born (the "due date").

Note that an employee does not have to actively work the 13 weeks prior to the due date to be eligible for pregnancy leave. It is only necessary that the employee have commenced employment at least 13 weeks before the baby is expected to be born.

Example: A typical case

Aurélie began her employment 15 weeks before her due date. She is eligible to begin her pregnancy leave at any time after starting her employment, because there are at least 13 weeks between the date her employment began and her due date.

Example: When an employee is off sick

Taylor is pregnant and was employed 15 weeks before the baby’s due date. Soon after starting this new job, Taylor was off sick for five weeks. Taylor is eligible for pregnancy leave because there are at least 13 weeks between the date the employment began and the baby’s due date. The fact that Taylor did not actually work for 13 weeks is irrelevant.

Example: When a baby is born before the due date

Meredith began her employment 15 weeks before her due date. However, 11 weeks after starting her new job, her baby was born. Meredith is eligible for pregnancy leave to begin on the date the baby was born, because there were at least 13 weeks between the date she began her employment and her due date. The fact that her baby was born less than 13 weeks after she began her employment is irrelevant.

When a pregnancy leave can begin

Usually, the earliest a pregnancy leave can begin is 17 weeks before the employee's due date. However, when an employee has a live birth more than 17 weeks before the due date, the employee is able to begin pregnancy leave on the date of the birth.

Ordinarily, the latest a pregnancy leave can begin is on the baby's due date. However, if the baby is born earlier than the due date, the latest the leave can begin is the day the baby is born.

Within these restrictions, an employee can start taking pregnancy leave any time within the 17 weeks up to and including the baby’s due date. The employer cannot decide when the employee will begin pregnancy leave even if the employee is off sick or if the pregnancy limits the type of work the employee can do.

Length of a pregnancy leave

A pregnancy leave can last a maximum of 17 weeks for most employees. However, if an employee has taken a full 17 weeks of leave but is still pregnant, the employee may continue on the pregnancy leave until the birth of the child. If the employee has a live birth, the pregnancy leave will end on the date of the birth and then, in most cases, the employee will be able to commence parental leave.

An employee may decide to take a shorter leave if desired. However, once an employee has started a pregnancy leave, the leave must be taken all at once. The employee cannot use up part of the 17 weeks, return to work and then go back on pregnancy leave for the unused portion. If the employee returns  to work for the employer from whom the leave was taken, even if it is only part-time, under the ESA the employee gives up the right to take the rest of the pregnancy leave.

(Note that under the federal Employment Insurance Program, employees are able to return to work and earn a certain amount of wages without having their employment insurance benefits reduced. However, under the ESA, a return to work, even on a part-time basis, would end the pregnancy leave.)

Miscarriages and stillbirths

An employee who has a miscarriage or stillbirth more than 17 weeks before the baby’s due date is not entitled to a pregnancy leave.

However, if an employee has a miscarriage or stillbirth within the 17-week period preceding the due date, the employee is eligible for pregnancy leave. The latest date for commencing the leave in that case is the date of the miscarriage or stillbirth.

The pregnancy leave of an employee who has a miscarriage or stillbirth ends on the date that is the later of:

  • 17 weeks after the leave began;
    or
  • 12 weeks after the stillbirth or miscarriage.

This means that the pregnancy leave of an employee who has a stillbirth or miscarriage will be at least 17 weeks long. In some cases it may be longer.

Example: When an employee has a stillbirth

Wai was pregnant and began pregnancy leave 15 weeks before the date the baby was due to be born. On the due date, Wai had a stillbirth. The ESA provides that the pregnancy leave ends on the date that is the later of 17 weeks after the leave began or 12 weeks after the stillbirth.

In this case, the later date is 12 weeks after the stillbirth. Wai can stay off work for up to 12 more weeks after the stillbirth, for a total of 27 weeks of pregnancy leave.

Example: When an employee has a miscarriage

Hélène began her pregnancy leave 15 weeks before her baby was due. One week later (one week into her pregnancy leave) she had a miscarriage. The law indicates that her pregnancy leave ends on the date that is the later of either 17 weeks after the leave began or 12 weeks after the miscarriage.

In Hélène’s case, the later date is 17 weeks after the leave began. She will get a total of 17 weeks of leave.

Notice requirements for pregnancy leave

Giving notice about starting a pregnancy leave

An employee must give their employer at least two weeks’ written notice before beginning a pregnancy leave. Also, if the employer requests it, the employee must provide a certificate from a medical practitioner (which may include a medical doctor, a midwife or a nurse practitioner) stating the baby’s due date.

Retroactive notice

Sometimes a pregnant employee has to stop working earlier than expected (for example, because of complications caused by the pregnancy). In that case, the employee has two weeks after stopping work to give the employer written notice of the day the pregnancy leave began or will begin.

An employee does not have to start a pregnancy leave at the time of stopping work if the employee has stopped work due to illness or a complication caused by the pregnancy. The employee may choose instead to treat the time off as sick time and plan to commence the pregnancy leave later (but no later than the earlier of the birth date or due date). In that case, the employee has two weeks after stopping work to give the employer written notice of the day the leave will begin. If the employer requests it, the employee has to provide a medical certificate issued by a medical doctor, a midwife or a nurse practitioner stating the baby’s due date and stating that the employee was unable to perform the duties of the position because of the complication.

If an employee stops working earlier than expected because of a birth, stillbirth or miscarriage, the employee has two weeks after stopping work to give the employer written notice of the day the leave began. The pregnancy leave begins no later than the date of the birth, stillbirth or miscarriage. If the employer requests it, the employee has to provide a medical certificate issued by a medical doctor, a midwife or a nurse practitioner stating the due date and the date of birth, stillbirth or miscarriage.

Changing the date a pregnancy leave starts

Suppose a pregnant employee has given notice to begin a pregnancy leave. The employee can begin the leave earlier than the date originally provided to the employer if the employee gives the employer new written notice at least two weeks before the new, earlier date.

Example: Changing the start of a pregnancy leave to an earlier date

Barbara gave her employer written notice that she would begin her pregnancy leave on September 10. Now Barbara wants to start her leave on August 27. She must give her employer new written notice by August 13 (two weeks before August 27).

An employee can also change the date the pregnancy leave will begin to a later date than that originally provided to the employer. To do this, the employee must give the employer a new written notice at least two weeks before the original date the employee had said the leave would begin.

Example: Changing the start of a pregnancy leave to a later date

Mairead gave written notice to the employer that Mairead would start a pregnancy leave on September 10. Now Mairead wants to start the leave on September 15. Mairead must give the employer new written notice by August 27 (two weeks before September 10).

Failing to give notice

An employee who fails to give the required notice does not lose the right to a pregnancy leave.

Giving notice about ending a pregnancy leave

An employee can tell the employer when the return to work will be, but the employee is not required to do so. If the employee does not specify a return date, the employer is to assume that the employee will take the full 17 weeks of leave (or any longer period that the employee may be entitled to).

An employer cannot require an employee to return from pregnancy leave early. Also, an employer has no right under the ESA to require an employee to prove, through medical documentation, that the employee is fit to return to work. The decision to return to work is the employee’s.

Changing the date a pregnancy leave ends

An employee may want to change the date the pregnancy leave was scheduled to end to an earlier date. If so, the employee must give the employer a new written notice at least four weeks before the new, earlier day.

An employee may want to change the date the leave was scheduled to end to a later date. In this case, the employee must give the employer a new written notice at least four weeks before the date the leave was originally going to end. Unless the employer agrees, the employee cannot schedule a new end date to the pregnancy leave that would result in the employee taking a longer leave than the employee is entitled to under the ESA.

When an employee decides not to return to work

Suppose an employee wants to resign before the end of the pregnancy leave, or at the end of the leave. The employee must give the employer at least four weeks’ written notice of the resignation. This notice requirement does not apply if the employer constructively dismisses the employee. (See “Termination of employment” chapter for information about constructive dismissal.)

Parental leave

Both new parents have the right to take parental leave of up to 61 or 63 weeks of unpaid time off work.

Qualifying for parental leave

A new parent is entitled to parental leave whether they are a full-time, part-time, permanent or term contract employee provided that the employee:

  • is employed by an employer that is covered by the ESA,
    and
  • was employed for at least 13 weeks before commencing the parental leave.

An employee does not have to actively work in the 13- week period preceding the start of the parental leave. For example, the employee could be on layoff, vacation, sick leave or pregnancy leave for all or part of the 13-week qualifying period and still be entitled to parental leave. The ESA only requires the employee to have been employed by the employer for 13 weeks before they may commence a parental leave.

A "parent" includes:

  • a birth parent;
  • an adoptive parent (whether or not the adoption has been legally finalized); or
  • a person who is in a relationship of some permanence with a parent of the child and who plans on treating the child as their own. This includes same-sex couples.

When a parental leave can begin

A birth mother who takes pregnancy leave must ordinarily begin parental leave as soon as the pregnancy leave ends. However, an employee's baby may not yet have come into the employee’s care for the first time when the pregnancy leave ends. For example, perhaps the baby has been hospitalized since birth and is still in the hospital's care when the pregnancy leave ends.

In this case, the employee can either commence parental leave when the pregnancy leave ends or choose to return to work and start the parental leave later. If the employee chooses to return to work, that employee will be able to start parental leave anytime within 78 weeks of the birth or the date the baby first came home from the hospital.

All other parents must begin their parental leave no later than 78 weeks after:

  • the date their baby is born;
    or
  • the date their child first came into their care, custody and control.

The parental leave does not have to be completed within this 78-week period. It just has to be started within this timeframe.

Length of a parental leave

Birth mothers who take pregnancy leave are entitled to take up to 61 weeks of parental leave. All other new parents are entitled to take up to 63 weeks of parental leave.

Employees may decide to take a shorter leave if they wish. However, once an employee has started parental leave, they must take it all at one time. The employee cannot use up part of the leave, return to work for the employer and then go back on parental leave for the unused portion.

(Note that under the federal Employment Insurance Program, employees are able to return to work and earn a certain amount of wages without having their employment insurance benefits reduced. However, under the ESA, a return to work, even on a part-time basis, would end the parental leave.)

Miscarriages and stillbirths

An employee who has a miscarriage or stillbirth, or whose spouse or same-sex partner has a miscarriage or stillbirth, is not eligible for parental leave.

Notice requirements for parental leave

Giving notice about starting a parental leave

An employee must give their employer at least two weeks’ written notice before beginning a parental leave. Because EI benefits can be taken over a shorter period or longer period, it is strongly advised that employees tell the employer exactly how many weeks the employee plans to take as parental leave when giving notice (for example, 37 weeks or 63 weeks). If an employee does not tell an employer how much leave they plan to take, the employer is to assume that the employee will be on leave for the full 61 or 63 weeks (see “giving notice about ending a parental leave” and “changing the date a parental leave ends,” below). In that case, the employee is required to give four weeks’ written notice if they want to return to work before using 61 or 63 weeks of leave. If an employee is also taking a pregnancy leave, the employee may, but is not required to, give the employer notice of the parental leave when notice of the pregnancy leave is provided.

Retroactive notice

Sometimes, an employee may stop working earlier than expected because a child is born or comes into the employee’s custody, care and control for the first time earlier than expected. In this case, the employee has two weeks after stopping work to give the employer written notice that they are taking parental leave. The parental leave begins on the day the employee stops working.

Changing the start of a parental leave to an earlier date

Suppose an employee has given notice to begin a parental leave. The employee can begin the leave earlier than the date the employee originally told the employer by giving the employer new written notice at least two weeks before the new, earlier date. If the employee intends to use less than 61 or 63 weeks of leave, it is advised that the employee clearly state the number of weeks the employee plans to take in the new written notice. See “giving notice about starting a parental leave,” above.

Example

Lee gave the employer written notice that Lee’s parental leave would begin on September 10. Now Lee wants to start the leave on August 27. Lee must give the employer new written notice by August 13 (two weeks before August 27).

Changing the start of a parental leave to a later date

An employee can also change the starting date of the leave to a later date than what the employee originally told the employer. To do this, the employee must give the employer new written notice at least two weeks before the original date the leave was going to begin. If the employee intends to use less than 61 or 63 weeks of leave, it is advised that the employee clearly state the number of weeks they plan to take in the new written notice. See “giving notice about starting a parental leave,” above.

Example

Wendy gave her employer written notice that she would start her parental leave on September 10. Now Wendy wants to start her leave on September 15. She must give her employer new written notice by August 27 (two weeks before September 10).

Failing to give notice

An employee who fails to give the required notice does not lose their right to a parental leave.

Giving notice about ending a parental leave

An employee can tell the employer when they will be returning to work, but the employee is not required to do so. If the employee does not specify a return date, or did not specify a return date when the original notice that the employee was planning to take the leave was given, the employer is to assume that the employee will take the full 61 or 63 weeks of leave. For example, if an employee did not specify in the original notice that the employee planned to take 35 or 37 weeks of leave, the employer will assume that the employee will take the full 61 or 63 weeks of leave. If the employee wants to return to work after 35 or 37 weeks of leave, the employee must provide four weeks’ of written notice prior to their return to work unless the employer allows the employee to return. An employer cannot require an employee to return from leave early.

Changing the date a parental leave ends

An employee may want to return to work earlier than the date the employee was scheduled to return. If so, the employee must give the employer written notice at least four weeks before the new, earlier day.

An employee may want to return to work later than the date the employee was scheduled to return. In this case, the employee must give the employer new written notice at least four weeks before the date the employee was originally going to return. However, unless the employer agrees, the employee cannot schedule a new return date that would result in the employee taking a longer leave than the employee is entitled to under the ESA.

When an employee decides not to return to work

Suppose an employee decides to resign before the end of their parental leave, or at the end of the leave. The employee must give the employer at least four weeks’ written notice of the resignation. This notice requirement does not apply if the employer constructively dismisses the employee. (See “Termination of employment” chapter for information about constructive dismissal).

Rights for employees taking pregnancy and parental leaves

Employees on pregnancy or parental leave have several rights.

The right to reinstatement

In most cases, an employee who takes a pregnancy or parental leave is entitled to:

  • the same job the employee had before the leave began;
    or
  • a comparable job, if the employee’s old job no longer exists.

In either case, the employee must be paid at least as much as they were earning before the leave. Also, if the wages for the job went up while the employee was on leave, or would have gone up if the employee hadn't been on leave, the employer must pay the higher wage when the employee returns from leave.

If an employer has dismissed an employee for reasons that are totally unrelated to the fact that the employee took a leave, the employer does not have to reinstate the employee.

The right to be free from penalty

Employers cannot penalize an employee in any way because the employee:

  • took a pregnancy or parental leave;
    • For example, an employee adopted a child and took parental leave.
  • plans to take a pregnancy or parental leave;
    • For example, an employee tells other employees of plans to have children.
  • is eligible to take a pregnancy or parental leave;
    • For example, an employee’s spouse has just given birth. The employee has not yet decided to take parental leave, but the employee is eligible
  • will become eligible to take a pregnancy or parental leave.
  •  
    • For example, an employee tells an employer of a same sex partner’s pregnancy. The employee is not yet eligible to take parental leave because the employee is not yet a parent, but the employee will be eligible to take parental leave in the future.
  • asks questions about pregnancy or parental leave.
    • For example, an employee asks the employer if a father can take parental leave.

A “reprisal” is when an employer penalizes or threatens to penalize an employee in any way for doing any of these things.

The right to continue to participate in benefit plans

Employees on pregnancy or parental leave have a right to continue to take part in certain benefit plans that their employer may offer. These include:

  • pension plans;
  • life insurance plans;
  • accidental death plans;
  • extended health plans; and
  • dental plans.

The employer must continue to pay its share of the premiums for any of these plans that were offered before the leave, unless the employee tells the employer in writing that the employee will not continue to pay their own share of the premiums.

In most cases, employees must continue to pay the employee’s share of the premiums in order to continue to participate in these plans.

Employees who are on pregnancy or parental leave can also continue to participate in other benefit plans if employees who are on other types of leave are able to continue to participate in those plans. In addition, a female employee may be entitled to disability benefits during that part of the leave during which the employee would not have been able to work for health reasons related to pregnancy or childbirth.

The right to earn credits for length of employment, length of service and seniority

Employees continue to earn credits toward length of employment, length of service, and seniority during periods of leave.

Example: Length of service

Trina's employment contract states that she earns 1 paid vacation day for each month of active service and that after five years (length of service) she will begin to earn 1½ paid vacation days for each month of active service. She is on pregnancy and parental leave for her entire fifth year of employment.

Because her leave will count towards "length of service", the year on leave will count to complete her 5 years length of service and she will then be entitled to earn 1½ paid vacation days for each month of active service when she returns from her leave.

However, while she was on the leave she was not earning credit for active service and so under her contract she was not earning paid vacation days during the leave itself. At the end of the leave she would not have earned any paid vacation under contract but the employer would be required to ensure that she received at least the minimum vacation entitlement for that year (two weeks of vacation time off plus four per cent of any wages earned in that year).

Example: Seniority

Kaley is a member of a union that has bargaining rights at the workplace. Under the collective agreement, an employee's seniority determines such things as order of layoff and recall, job promotions and annual vacation entitlements. Kaley continues to accrue seniority for all purposes during the pregnancy and parental leaves, just as if Kaley had been actively employed.

Probation

The period of a leave is not included when determining whether an employee has completed a probationary period. If an employee was on probation at the start of a leave, the employee must complete the probationary period after returning to work.