Entitlement to pregnancy and parental leaves of absence is a well-established right in Canadian workplaces. While these leaves of absence are typically unpaid, they can extend for well over a year – having a significant impact on any organization. Recently, Nova Scotia and Quebec took steps to further expand pregnancy and parental leave entitlements.
In this post, we review:
- the basics of pregnancy and parental leaves – that every employer should understand;
- what’s new for employers that have workers in Nova Scotia and Quebec.
Pregnancy and Parental Leave Fundamentals
Entitlement to pregnancy (maternity) and parental leaves of absence are contained in the employment standards legislation of each province and the federal jurisdiction. When considering an employee’s entitlement to pregnancy and parental leave, HR teams will want to consider: (i) eligibility; (ii) notice and medical note requirements; (iii) length of the leave; and (iv) any additional requirements.
Eligibility for a pregnancy and/or parental leave is often based on length of employment. Eligibility periods vary considerably across Canada. For example, employees in Alberta are eligible for pregnancy/parental leave after 90 days of employment, in Ontario it’s 13 weeks and in Manitoba employees must be employed for at least 7 consecutive months.
On the other hand, some provinces, like British Columbia, New Brunswick, Nova Scotia and Quebec have no eligibility period. This means that employees in these provinces would be eligible for pregnancy and parental leave immediately after they start employment.
Several provinces (e.g., Ontario, Saskatchewan, Alberta, Newfoundland and Labrador) specify that employees who have a miscarriage/stillbirth may be eligible for pregnancy leave, while B.C. provides a shorter leave for employees who “terminate” a pregnancy.
Every jurisdiction in Canada extends parental leave to both birth and adoptive parents.
Notice and Medical Note Requirements
Generally, employees must provide written notice of their leave of absence 2-6 weeks in advance (depending on the jurisdiction). Employers may require a medical certificate confirming a pregnancy and, in some instances, indicating an estimated due date.
Length of Leave
The length of pregnancy and parental leaves vary from one Canadian jurisdiction to the next, ranging from 16-19 weeks of pregnancy leave and 59-65 weeks of parental leave. These leaves of absence must be taken within a specified number of weeks of a child’s birth/adoption. Note: Federal, British Columbia and PEI legislation permit extended leaves in certain circumstances (e.g., the child is hospitalized or has a physical, psychological or emotional condition requiring an additional period of parental care).
Certain jurisdictions (i.e., Alberta, Saskatchewan and federal) permit employers to require pregnant employees to take a leave where they are unable to perform the essential duties of the position and there is no other way to accommodate them.
Quebec is the only jurisdiction in Canada to require employers to pay employees for any time off related to pregnancy (i.e., 5 days of additional leave include 2 paid days). There are also some additional unpaid leaves unique to that province:
- for medical exams related to the pregnancy;
- where there is a health risk caused by the pregnancy per a medical certificate;
- paternity leave.
What’s New in Pregnancy and Parental Leave
Nova Scotia added a new unpaid leave where an employee’s pregnancy ends in other than in a live birth. In addition to leaves for employees who experience the end of a pregnancy (similar to those noted above for miscarriage/stillbirth), Nova Scotia provides employees with up to 5 consecutive working days of unpaid leave where:
- the employee’s spouse experiences an end of pregnancy;
- the employee’s former spouse experiences an end of pregnancy and the employee would have been the biological parent;
- another person experiences an end of pregnancy and the employee would have become the parent under a surrogacy agreement or intended adoption.
So, Nova Scotia has broadened this requirement to cover more than just the pregnant employee.
Quebec has introduced Bill 12, which will expand the pregnancy, paternity and parental leave of absence provisions to take into account children born through a surrogacy project. This includes:
- 5 days of leave for employees whose child was born through surrogacy and employees who give birth to a child in the context of a surrogacy;
- paternity leave for employees whose child was born through surrogacy and who adopt a child;
- 65 weeks of parental leave for employees whose child was born through surrogacy.
In addition, the length of time to take parental leave (i.e., when it must end) will be extended from 78 to 85 weeks.
Pregnancy and parental leave entitlements have expanded beyond the rights of “traditional birth mothers” to protect the rights of other parents. More recently, Canadian employment standards legislation has started to take into account children born through other methods. We frequently see these kinds of changes that start in a couple of provinces adopted by the country as a whole. Employers across Canada should continue to watch for further changes to pregnancy and parental leave.
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