In Ontario, “parental leave” refers to a leave of absence taken from work that begins after a baby is born. Parental leave is governed by the Employment Standards Act, 2000, which applies to many employees in Ontario (federally-regulated industries, such as airlines and railroads, fall outside of the Employment Standards Act and have their own parental leave entitlements under the Canada Labour Code).
Who is eligible for parental leave?
A parent employed by an employer for a minimum of 13 weeks is entitled to parental leave, whether the employee works full-time, part-time, or on a fixed-term contract. Note that these 13 weeks do not have to have all occurred immediately before the leave is taken – the requirement is only that an employee worked 13 total weeks for the employer.
Both parents qualify for parental leave. They may take their leaves at the same time, or at different times within 78 weeks after the child’s birth.
Who counts a “parent”?
Under the Employment Standards Act, a parent can be a birth mother or father, a person with whom a child is placed for adoption or a person in a permanent relationship with the parent of a child with the intention of treating the child as his or her own (i.e. a stepparent).
Parental leave vs. pregnancy leave
There is no separate category of “paternity leave” in Ontario; both mothers and fathers take parental leave. By contrast, “pregnancy leave” (sometimes also called “maternity leave”) is only available to birth mothers.
Parental leave is available for a maximum of 63 weeks and can only be taken after the birth of the baby. Pregnancy leave, by contrast, is available for a maximum of 17 weeks and can be started up to 17 weeks before the mother’s due date. Birth mothers are eligible to take both pregnancy and parental leave.
Note that the maximum leave is available to both parents. There is no “combined” limit as in some other jurisdictions. This means that if they are eligible to take parental leave, both parents may each take a maximum of 63 weeks.
Do I still get paid while I am on leave?
In Ontario, an employer does not need to pay an employee on parental leave, although some employers might opt to pay a partial salary for part of the parental leave period. Parents who qualify may be entitled to federal maternity and parental employment insurance (EI) payments. Maternity EI payments may be for up to $638 per week for up to 15 weeks, while parental benefits have the same weekly maximum amount for up to 35 weeks.
Note that due to the COVID-19 pandemic, the federal government enacted special temporary rules reducing the 600-hour minimum required to be eligible for maternity EI benefits. These rules will remain in place until September 2022.
What about benefits?
Employers are required to maintain employees’ benefits when they are on parental leave. Any life insurance plans, health plans, and pension plans you receive while working must remain in effect.
When do I have to tell my employer that I’m planning to take parental leave?
Employees who fall under the Employment Standards Act must provide their employer at least two weeks’ notice of their intention to take parental leave. Note that if a child is born earlier than anticipated, parental leave may start early and this notice requirement is waived. Employees are not obligated to tell their employer how long their leave will be, and all employers should assume the full 63-week parental leave period will be taken.
When ending parental leave, an employee must give their employers at least four weeks’ notice of their intention to return to work.
Can I quit my job after taking parental leave?
Unless you have additional contractual obligations (such as a longer notice period), you may, but you must give your employer at least four weeks’ notice of your resignation.
Am I guaranteed my same job back at the same pay?
The Employment Standards Act requires employers to reinstate employees returning from parental leave to the same position and pay they held when they left. If that position no longer exists, the employee has the right to a comparable position with similar terms of employment.
Additionally, seniority continues to accrue while an employee is on parental leave. This means that for the purposes of calculating years of service, time spent on parental leave is not subtracted from the total term of employment.
Can I be fired while on leave?
Employers are prohibited from terminating employees for taking or attempting to take parental leave. However, employees on parental leave are not protected from being fired for reasons unrelated to their leave. For example, if an entire department was (legally) terminated while one of that department’s employees was on parental leave, that employee may also be legally terminated along with everyone else.
Miscarriages and stillbirths
In Ontario, an employee (or their spouse or partner) who suffers a miscarriage or stillbirth is not automatically eligible for parental leave under provincial law. Employers may have their own policies in place that allow a parent to take sick leave after a miscarriage. Note that if a mother suffers a miscarriage or stillbirth within 17 weeks of the due date, she is still eligible for pregnancy leave.
Contact Ottawa Employment Lawyers Tierney Stauffer LLP in Ottawa, Eastern Ontario, and North Bay
At Tierney Stauffer LLP, our employment law lawyers provide knowledgeable advice and representation to employees on their parental leave rights and entitlements. To schedule a consultation on your employment matter, reach out online or call us at 1-888-799-8057.