Offering unpaid extra leave for employees with a minimum length of service
Question: Our company offers extra unpaid parental leave of up to 18 months. However, we require employees to have completed a specific number of consecutive months of employment before they are eligible. Are there any liabilities with this requirement?
Answer: Parental leave is governed by the provinces and, for federal employees, the Canada Labour Code and essentially provides the right to take unpaid time off of work to care for a new child. Each provincial statute has its own separate requirement in terms of the length of time the employee must be employed in order to be eligible for parental leave.
Some provinces have no minimum requirement in terms of the length of time the employee must work in order to be entitled to parental leave:
•In B.C., Quebec and New Brunswick, there is no minimum requirement for work prior to the start of parental leave (37 weeks in B.C. and New Brunswick, 52 in Quebec). The only requirement is that the employee is working and four weeks of written notice (three weeks in Quebec) are given prior to the start of the intended leave.
•In Ontario, the employee must have been hired 13 weeks prior to the estimated due date. The length of the parental leave is 37 weeks (35 weeks if the birth mother takes pregnancy leave).
•In Newfoundland and Labrador, the employee must have worked at least 20 consecutive weeks prior to the start of the 37 week parental leave (35 weeks if the birth mother takes pregnancy leave).
•Federal employees must have worked six consecutive months continuously prior to the estimated leave date. The length of parental leave is 37 weeks.
•Manitoba employees must work for the employer for at least seven consecutive months before starting the 37 week leave.
•Prince Edward Island and Saskatchewan require the employee to have worked at least 20 weeks of the 52 weeks (not necessarily consecutively) prior to the parental leave (52 weeks in P.E.I, 37 weeks in Saskatchewan).
Some jurisdictions require that an employee must have worked for 12 months prior to the estimated due date in order to qualify for parental leave:
•In Alberta, the employee must have worked for the employer for at least 52 consecutive weeks. Parental leave is 37 weeks.
•In Nova Scotia, the employee must have been employed for 12 months prior to the estimated due date. The length of the parental leave is 52 weeks (35 weeks if the birth mother takes Pregnancy leave).
•In the Northwest Territories, Nunavut and the Yukon, the employee must have been employed for 12 consecutive months prior to the date the employee intends to commence the leave. The length of the parental leave is 37 weeks.
Some of the acts specify that the weeks or months worked prior to beginning the parental leave must be consecutive. However, not all require the employee to have worked a consecutive number of weeks or months.
Based on the law in each respective jurisdiction, as long as the employee works the required length of time (if any), she is entitled to the statutorily prescribed parental leave.
As long as the employer is abiding by the minimum required, nothing precludes this extension being based on a minimum time worked in order to get the extended parental leave.
It should be made clear to employees that, by law, they are entitled to the statutorily prescribed number of weeks of parental leave if they have worked the required amount of time (if any), and that, if they would like anything beyond that entitlement, they must work a certain amount of months consecutively as required by the company.
