Entitlement of employee who goes on disability benefits while on maternity leave
Question: One of our employees had a car accident after commencing maternity leave. In addition to her physical injuries, she began suffering from post-partum depression. The employee went on long-term disability for about a year, but her claim has now ended because she has been declared medically fit to return to work. Can we require her to return immediately, or is she entitled to take the remaining portion of her maternity leave?
Answer: An employee’s entitlement to sickness or disability benefits while on maternity leave, and the length of her maternity leave, are two separate issues.
If an employer offers sickness or disability benefits, it must ensure such benefits are not administered in a discriminatory manner. In the leading decision of Brooks v. Canada Safeway, Safeway provided its employees with a sick leave plan, under which employees were entitled to 26 weeks of income replacement in the event they were unable to attend work because of health issues. However, the plan excluded pregnant women from coverage from six weeks prior to the expected date of the birth of the child to 11 weeks after the birth. Pregnant employees were unable to access sick leave regardless of whether the illness was related or unrelated to the pregnancy.
The Supreme Court of Canada ruled discrimination on the basis of pregnancy is discrimination on the basis of sex. It found since Safeway’s sick leave plan discriminated against pregnant employees by excluding them from coverage, it violated human rights legislation.
In Alberta Hospital Assn. v. Parcels, the hospital’s collective agreement provided that employees going on a voluntary leave of absence were required to prepay 100 per cent of the premiums if they wanted to maintain their benefits while on leave. However, employees going on sick leave were only required to prepay 25 per cent of the premiums. The hospital told Parcels she was required to prepay 100 per cent of the premiums to maintain her benefits because her maternity leave was a voluntary leave of absence. Parcels filed a human rights complaint, claiming because she was unable to work for health-related reasons for part of her maternity leave, she should only be required to prepay 25 per cent of her benefit costs.
The Alberta Court of Queen’s Bench said when an employee goes on a voluntary leave, she cannot expect to be covered by the employer’s sick leave plan. With maternity leave, however, there is an expectation that for at least some period of time during the leave she will be unable to work for medical reasons. The court found by requiring Parcels to prepay 100 per cent of the benefit premiums for her entire maternity leave, the hospital discriminated against her because it treated the health-related portion of her maternity leave differently than other health-related absences.
The court in Parcels also found an employee who goes on maternity leave is entitled to claim benefits under sickness or disability-related programs provided by the employer, at any time during the leave when she is unable to work for medical reasons, not just at the beginning of the leave.
In the question above, the employee was entitled to apply for and collect long-term disability benefits notwithstanding the fact she was on maternity leave, because she was unable to work for medical reasons. However, her receipt of long-term disability benefits does not extend the period of maternity leave.
Employment standards legislation in every Canadian jurisdiction requires employers to provide unpaid pregnancy leave for pregnant employees and unpaid parental leave for birth or adoptive parents. In most jurisdictions, a female employee who takes pregnancy and parental leave is required to take the two leaves consecutively, and to complete them no later than 52 weeks after birth of her child. Manitoba and the Yukon have exceptions, where an employee can take her pregnancy and parental leaves non-consecutively, with the employer’s consent.
It appears the employee in this case intended to and did take her pregnancy and parental leaves consecutively. Since she has been off work for more than 52 weeks and has been declared medically fit to return, she is not entitled to further maternity leave.
For more information see:
•Brooks v. Canada Safeway, 1989 CarswellMan 160 (S.C.C.).
•Alberta Hospital Assn. v. Parcels, 1992 CarswellAlta 24 (Alta. Q.B.).
