Maternity leave in Canada is hugely beneficial to families and Canada in general. Though we’ve had some form of paid maternity leave since 1971, we need only look to our southern neighbour to appreciate just how much we benefit. A recent fact sheet put out by the US Joint Economic Committee pointed out that not only do families and children benefit from paid leave, but economies are strengthened due to factors such as increased earning power and lower unemployment. Furthermore, maternity leave even provides benefits to employers such as higher employee engagement and productivity, retention of skilled talent and a lower cost of replacement hires.
All that to say, maternity and parental leave is a good thing. But navigating your obligations to a pregnant employee can still be daunting. As an employer, just what are your responsibilities with regards to maternity and parental leave? What is required of you once an employee discloses a pregnancy? What can you do (and not do) while an employee is on leave? What are employer obligations regarding returning from maternity leave in Canada?
In this guide, we break your employee’s mat leave down into three phases — before, during and returning from mat leave — and examine your obligations and other considerations.
1. Before Maternity Leave – what are your responsibilities as an employer?
So, your employee has made an announcement. They’re pregnant! Now what?
Your obligations:
- Confidentiality: unless the employee made the announcement publicly, their disclosure should be considered confidential.
- Accommodation: depending on the type of work, an employee may require special accommodation to ensure their health and safety. As an employer, you are required to make those accommodations, so long as the employee provides a note from their healthcare provider. You can read more about these accommodations here.
- Time off for medical appointments: in an ideal world, employees should aim to schedule appointments outside of work hours. In the real world, this isn’t always possible as doctor’s offices often hold typical business hours and patients aren’t given many options for appointment times. You are required to allow time off for medical appointments, but whether or not that time is paid depends on your internal workplace policies. You can read more about this from the Canadian Human Rights Commission.
- Safe work environment: aside from any accommodations as stated above, you must also provide a safe work environment free of harassment. It might be a good idea to check in with your employee from time to time to ensure they aren’t on the receiving end of any hostile, discriminatory or otherwise unwelcome behaviour related to the pregnancy. Read more about making workplace health and safety a priority here.
Also consider:
- Workload: who will take on your employee’s workload while they are on leave? Now is the time to think about how the work will be divided among colleagues or if a replacement needs to be hired. Once you’ve determined a course of action, set it in motion as soon as possible. Pregnancy is a medical condition and complications can arise. If your employee needs to start their leave earlier than planned, you want to be prepared.
- Etiquette: some people love talking about their pregnancies. Others do not. As a general rule, leave any inquiries at a simple, “how are things?” Otherwise, follow your employee’s lead and don’t comment on their physical appearance. Depending on the circumstances, that could even land you in some legal hot water.
What you can’t do:
- Fire or demote: you cannot fire or demote someone for being pregnant. You also cannot fire or demote someone if their pregnancy interferes with their ability to do their job. In that case, the employee is required to provide documentation from a healthcare provider, and you are required to make accommodations as stated above. They may also be entitled to paid leave if you are unable to make accommodations.
- Eliminate their role: you also cannot eliminate their role because of their pregnancy. If you need to eliminate their role or even fire them for reasons unrelated to their pregnancy, it would be a good idea to seek legal advice first. If an employee feels the action was taken because of their pregnancy, they may choose to take legal action.
- Dictate when your employee starts leave.
2. During Maternity Leave
While an employee is on maternity leave, your main responsibility is to ensure their job remains available for them.
Your obligations:
- Hold their job: even if you hire a temporary replacement who turns out to be better suited to the role, you are required to hold the employee’s job for them. If that role is no longer available (meaning the role has been eliminated, not that someone else is filling it), you are required to offer a comparable role that is suited to their expertise and at the same or higher pay and benefits.
- Contractual obligations: if the employment contract offers additional benefits for employees on maternity or parental leave, such as a percentage of pay or extra leave, you must fulfill those obligations.
- Benefits: an employee on leave is still employed by you and is, therefore, still entitled to the same benefits they had before taking leave provided they continue to contribute to the benefits plan as they had before the leave. This includes insurance, vacation, sick days, etc.
Also consider:
- Company health: one sign of a healthy company is how it handles employee absence. Any extended leave is bound to produce a few bumps, but overall, a healthy company should be able to keep up regular operations. Think of an employee’s leave as an opportunity to assess company health. If there are any major struggles, roadblocks or bottlenecks, that gives you valuable insight into where your company or team may need strengthening.
- Documenting changes: to ensure a smoother transition upon return, appoint someone to document any major changes in procedures, policies or organizational structure throughout your employee’s leave.
What you can’t do:
- Fire, demote or eliminate their role: as mentioned earlier, you cannot fire or demote a person for being pregnant or taking maternity or parental leave. You also cannot eliminate their role. However, you can fire, demote or eliminate a role if that action has nothing to do with the person having been pregnant or taking leave, such as cutbacks for financial reasons. Once again, consult a qualified legal professional before taking any action.
3. Returning from maternity leave
When an employee returns from leave, keep in mind that they are not returning to the same environment they left. Either someone was brought in to cover their role, or colleagues stepped in to handle the workload. Changes within the company may have taken place. Organizational objectives and/or employee KPIs may have evolved. There may have even been changes to the role itself. On top of that, your employee is likely leaving their child in childcare for the first time. Expect your employee’s return to be a period of transition for you both.
Your obligations:
- Job availability: you are required to make your employee’s role available to them upon return. As mentioned previously if the role has been eliminated for reasons not related to the employee’s pregnancy or leave, you are required to make reasonable efforts to offer a comparable role within the company.
- Breastfeeding and milk expression: if your employee is still breastfeeding upon returning to work, providing accommodations is encouraged, and, if you are located in Ontario or British Columbia, subject to legislation. Consider providing a suitable place for your employee to either breastfeed or express milk and ensure there are adequate storage facilities for expressed milk.
- Time off for medical appointments: your employee may now have to take time off for their child’s medical appointments. Pregnancy and childbirth can also result in medical complications that require further appointments. Whether or not that time is paid depends on internal company policies, but you are required to allow for time off, within reason.
- Safe work environment: You must continue to ensure a safe work environment that is free of discrimination for all employees. This includes discrimination based on parental status and responsibilities.
Also consider:
- Transition: Returning to work after maternity or parental leave can be a major transition for parents and children. Your employee will need time to get up to speed on changes and new projects, and to get back into their work groove. They are also establishing new routines at home. On top of this, many children pick up an array of viruses and other illnesses in their first year of daycare, which may impact your employee’s availability and energy levels.
- Reasonable accommodation and compassion on your part is more than just being kind. It’s about supporting an employee through a transition so that they can continue to bring their valuable skills, knowledge and experience to their role.
What you can’t do:
- Fire, demote or eliminate their role: that one just keeps cropping up, doesn’t it? Again, it’s not that you can’t do it all. It’s that you can’t do it because of pregnancy, maternity leave or parental responsibilities. And, if the employee feels this action is discriminatory, they can choose to take legal action. Tread carefully.
When an employee chooses not to return to work from the maternity leave
Not returning to work after maternity leave or quitting a job while on maternity leave in Canada does happen. The employee may have decided to become a stay at home parent, seek alternative employment or their child may have special needs that make returning to work difficult. In such cases, the employee’s choice not to return should be treated as any other resignation.
Although some provinces may require notice and/or the employment contract may require notice, in many cases, employees are not required to provide notice if they do not intend to return after their leave. With the percentage of working mothers of young children in Canada rising, it’s very likely that your employee will return to work. However, you might want to have a contingency plan just in case.
Back-to-back maternity leaves
These days, back-to-back pregnancies are increasingly rare, especially with birth rates declining. However, it is a possibility. Back-to-back maternity leave in Canada is protected and, as an employer, you have the same obligations for both pregnancies.
What is different is that the employee may not be eligible for EI benefits for the second leave period. To be eligible in Canada, an employee must accumulate a minimum of 600 hours of employment during a set period, although this can differ from province to province. However, the onus of sorting out EI benefits is on the employee, not the employer.
Keep calm and work on
An employee taking maternity leave can be a stressful time. You’ve invested in this person’s development within the company and they are a valued team member. Keep in mind that when you support an employee’s growth in all areas of life, they are likely to feel more engaged at work and loyal to the company. When you provide a great place to work, people are far more invested in seeing the company thrive and likely to bring their best to the work that they do. Maternity leave is short-term. Investing in the happiness of your employees is an investment for the long-term.