Maternity Leave Obligations for Employees and Employers

July 23, 2015

When it comes to maternity leave we should be clear on one thing at the very beginning. What most people consider maternity leave is actually two types of leave: pregnancy leave of 17 weeks and parental leave of 35 weeks. Combined this accounts for 52 weeks of leave for a new parent. Parents who adopt are only entitled to 35 weeks of parental leave. There are distinctions between the two types of leave but for simplicity we’ll treat them both as maternity leave.
Employers have several obligations when it comes to maternity leave but employees also have some obligations. First and foremost employees must give two weeks of written notice of when their maternity leave will begin. It may begin up to 17 weeks prior to the expected due date but never later than the day the baby is born. An employee must also have been hired at least 13 weeks prior to the due date. The employee does not have to have actually worked during that period, they only need to have been hired. An employer can, if desired, request a certificate from a medical practitioner stating the baby’s due date. An employee is not required to give notice for when they will return to work but they are required to give four weeks notice if they are NOT returning to work.
Employee Obligations

  • Be hired 13 weeks prior to the expected due date
  • Two weeks written notice of commencement of leave
  • Certificate of due date if requested
  • Four weeks written notice if not returning to work
  • Provide written notice that the employee will not be paying their share of any benefit plans during the maternity leave

Employers have many significant obligations to an employee that is on maternity leave or is about to take maternity leave. Most employers are already aware that they cannot terminate an employee because they are on pregnancy leave or even thinking of taking pregnancy leave. There are circumstances, such as plant closes, where the termination has nothing to do with the pregnancy leave. In those cases there is no obligation to provide employment for the employee on leave.

In simple terms an employer must keep the employee’s seat warm during their absence. If that is not possible a comparable job must be made available when the employee wishes to return. As noted above there are times when this is not that case but in those cases the change in position must have nothing to do with the pregnancy.
A number of other employer obligations stem from the notion that an employee must be “free from penalty” for having taken pregnancy leave. To this end employers must maintain seniority and length of service for an employee that is on leave. Employers are also required to pay their portion of an employee benefit plan unless the employee provides written notice that they will not be paying their portion of the benefit plan, whatever that might be.

An area that might be overlooked during maternity leave is training. If requested in writing and employee can request of the employer that they be kept informed of training or promotions that are offered while they are on leave.

Summary of Employer Obligations

  • Offer parental leave to male and female employees
  • Never penalize the employee for having taken leave
  • Provide the same or a comparable job of the old job no longer exists
  • Maintain seniority and length of service
  • Provide their share of benefits
  • Provide notice of training or promotions

There are a number of online resources that provide additional detail not covered above. Two excellent resources are the Ontario Ministry of Labour pregnancy page and the Government of Canada maternity pamphlet.

We have also prepared a form letter that employers can give to their employees that are requesting maternity leave. The form letter covers off the items that employees need to provide as part of their request for leave. To receive a copy of this letter, please complete the form below.

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