By: Stephanie McDonald and Baljinder (Bal) Singh Tiwana
Understanding your rights during pregnancy and parental leave in Ontario is critical. Ontario’s Employment Standards Act (ESA) provides job-protected, unpaid leave, for new and expecting mothers, and parents. This guide explains how these protected leaves work, what you are entitled to, and common issues to watch out for.
Pregnancy Leave:
What is Pregnancy Leave and How Long can it last?
Pregnancy leave allows eligible employees to take up to 17 weeks of unpaid, job-protected time off due to pregnancy, under the ESA.
When Can You Take It?
You can begin pregnancy leave:
- Up to 17 weeks before your due date, or
- On the date of birth, if the baby is born earlier than expected
Once you begin pregnancy leave, you must take it in one continuous period.
If you are still pregnant at the end of 17 weeks, your leave continues until the birth of your child.
Notice Requirements
You must:
- Provide your employer with at least 2 weeks’ written notice before starting leave
- Provide a medical certificate confirming your due date, if your employer requests it
Who Qualifies?
Pregnancy leave applies to:
- Pregnant employees, including those who experience a miscarriage or stillbirth within 17 weeks of the due date
It does not apply to:
- Miscarriages or stillbirths occurring more than 17 weeks before the baby’s due date
- Adoptive parents (who instead qualify for parental leave)
Parental Leave:
What is Parental Leave?
Parental leave provides unpaid, job-protected time off, for new parents to care for their child. It is separate from pregnancy leave.
Who is Eligible?
Parental leave applies to employees who:
- Have worked for their employer for at least 13 weeks, and
- Are covered by the ESA
“Parent” includes:
- Birth parents
- Adoptive parents (even if adoption is not finalized)
- Person in a relationship of some permanence with a parent who intend to treat the child as their own
This applies regardless of whether you are full-time, part-time, permanent, or on contract.
When Can You Take It?
You can take parental leave:
- After the birth of your child, or
- When the child first comes into your care/custody (e.g. if the baby has been hospitalized since birth)
- It cannot start before you become a parent
The leave must:
- Begin within 78 weeks of the child’s birth or from the date the child first comes under your care, custody and control
- Must be taken in one continuous period
Notice Requirements
You must:
- Provide at least 2 weeks’ written notice before starting parental leave
Special situations:
- If the baby arrives early:
- You may start leave immediately
- You must notify your employer within 2 weeks after stopping work
- If you want to return early:
- You must give at least 4 weeks’ written notice
How Long Can It Last?
- Up to 61 weeks if you also took pregnancy leave
- Up to 63 weeks if you did not take pregnancy leave (this includes fathers, adoptive parents)
- Parental leave must be taken all at once, once it begins.
Your Rights While on Leave:
Under section 51 of the ESA:
While on pregnancy or parental leave, you have important protections under the ESA:
- The employer must continue your participation in benefits plans e.g. pension plans, life insurance plans etc, unless you opt out
- The employer must continue to make employer contributions in relation to any plan, unless the employee opts out
- Employees have the right to defer taking their vacation time until after the leave ends, or to a later date agreed upon with the employer
Under Section 53 of the ESA
- Your employer upon your return should reinstate your most recently held position if it still exists, or to a comparable position
- You are entitled to receive the greater of:
- The wage you were earning before your leave, or
- The wage you would have been earning if you had not taken the leave
Section 74 of the ESA
Under section 74 of the ESA, you are protected from reprisal for exercising your legal rights. For example, you employer cannot demote your role, because you opted for leave.
Employment Insurance (EI)
Although ESA leave is unpaid, many employees qualify for Employment Insurance (EI) benefits, which provide income replacement during leave. Eligibility depends on insurable hours worked.
Common Issues Affecting Mothers:
1. Workplace Changes During or After Leave
Changes to your role may be unlawful if they:
- Are based on pregnancy or sex discrimination, or
- Amount to constructive dismissal
However, a legitimate business-related change such as restructuring may be allowed.
2. Childcare Challenges
If you cannot secure childcare:
- You should actively try to find reasonable options within your budget and location, as soon as possible.
- If unsuccessful, you may request:
- An extension of leave, or
- Accommodation from your employer
Employers must accommodate to the point of undue hardship, considering:
- Cost
- Outside funding
- Health and safety
3. Managing Multiple Pregnancies
To qualify for EI again:
- Ensure you accumulate enough insurable hours between leaves
Planning ahead is essential.
4. When to Disclose Pregnancy
While early disclosure can help with planning:
- It may expose you to risk of discrimination
Best practice:
- Provide notice within ESA timelines, not earlier than necessary
Conclusion
Pregnancy and parental leave are legal rights, not privileges. While many employers are supportive, issues may still arise. Understanding your entitlements can help you safeguard your job, your income, and your family during a pivotal stage in your life and career.
Do not assume your employer will “do the right thing.” Be informed and be proactive and be prepared to assert your rights when necessary.
Workplace Sage Legal is here to support and guide you each step of the way.
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Learn more about employment law through the articles below:
- Demotion After Maternity Leave Leads to Constructive Dismissal
- Who is entitled to Reasonable Notice, and how is it calculated?
- Constructive Dismissal in Ontario: What Employees Need to Know
DISCLAIMER: This article/blog is provided for educational/informational purposes only. This blog does not constitute legal advice. Do not rely on any advice before speaking with a lawyer. This blog does not form a solicitor-client relationship.
