Eligibility for parental leave for fathers
Question: A male employee is requesting a few weeks of leave when his wife gives birth. He is not taking parental leave but just wants some time off around the birth. Can we require him to use vacation time? What are the standards across the country for giving male employees leave when their spouses give birth? Is there a minimum requirement of service time before they are eligible?
Answer: The right to maternity/paternity/parental leave (time away from the workplace) is governed by employment standards legislation in each province. Employees falling under federal jurisdiction have their entitlement governed by the employment standards provisions in Part III of the Canada Labour Code.
For employees who are not excluded from employment standards coverage (most of the statutes or their associated regulations exclude certain types of employees), the legislation will typically grant a right to leave and to job protection for the duration of the leave. Like other rights extended to employees under employment standards legislation, paternity or parental leave cannot be withheld by an employer nor can an individual employee (or a union on behalf of its members) agree to a lesser standard than that provided in the legislation.
Minimum service requirements vary from jurisdiction to jurisdiction. British Columbia, New Brunswick and Quebec have no minimum service requirements. Ontario imposes a requirement of 13 weeks’ employment but does not require continuous service. Newfoundland and Labrador and Prince Edward Island require that an employee have worked for at least 20 consecutive weeks. Under the federal legislation, the employee must have completed six consecutive months of continuous employment. Saskatchewan requires an employee to have worked for 20 of the 52 weeks prior to the application for leave. Manitoba imposes a requirement for at least seven consecutive months’ service. In Alberta, employees must have a minimum of 52 consecutive weeks of employment before they are qualified for parental leave.
The leaves guaranteed under employment standards legislation are unpaid. Financial benefits may be claimed by employees on parental or paternity leave under the federal employment insurance (EI) program. Unions will often negotiate supplementary employment insurance benefits, so EI benefits can be topped up to an amount that matches or approximates an employee’s regular earnings.
However, there is no obligation on an employer to pay an employee on parental leave in the absence of a contractual obligation to that effect. Accordingly, while an employer cannot force a male employee to use vacation time rather than take the statutory parental leave to which he is entitled, a male employee cannot compel an employer to pay for the time off unless he has some contractual right to leave with pay.
The question whether an employee who wishes to take time off can be forced to use vacation time may be determined to some extent by employment standards provisions, employer policies, employer practices or collective agreements. Although vacation scheduling falls within management rights as a general rule, it is not unusual for limits to be placed on the exercise of those rights, particularly in a unionized environment. The employer’s right to schedule may also be affected if, for example, the employee’s annual vacation has already been approved for a later date and the employee has acted on the basis of that prior approval.
If there are no contractual or factual constraints on the employer’s right to schedule vacations in a particular employment relationship, the employer may be within its rights to schedule the employee’s vacation at the time of his absence.
Tim Mitchell is a partner with Laird Armstrong in Calgary who practices employment and labour law. He can be reached at [email protected] or (403) 233-0050.
Answer: The right to maternity/paternity/parental leave (time away from the workplace) is governed by employment standards legislation in each province. Employees falling under federal jurisdiction have their entitlement governed by the employment standards provisions in Part III of the Canada Labour Code.
For employees who are not excluded from employment standards coverage (most of the statutes or their associated regulations exclude certain types of employees), the legislation will typically grant a right to leave and to job protection for the duration of the leave. Like other rights extended to employees under employment standards legislation, paternity or parental leave cannot be withheld by an employer nor can an individual employee (or a union on behalf of its members) agree to a lesser standard than that provided in the legislation.
Minimum service requirements vary from jurisdiction to jurisdiction. British Columbia, New Brunswick and Quebec have no minimum service requirements. Ontario imposes a requirement of 13 weeks’ employment but does not require continuous service. Newfoundland and Labrador and Prince Edward Island require that an employee have worked for at least 20 consecutive weeks. Under the federal legislation, the employee must have completed six consecutive months of continuous employment. Saskatchewan requires an employee to have worked for 20 of the 52 weeks prior to the application for leave. Manitoba imposes a requirement for at least seven consecutive months’ service. In Alberta, employees must have a minimum of 52 consecutive weeks of employment before they are qualified for parental leave.
The leaves guaranteed under employment standards legislation are unpaid. Financial benefits may be claimed by employees on parental or paternity leave under the federal employment insurance (EI) program. Unions will often negotiate supplementary employment insurance benefits, so EI benefits can be topped up to an amount that matches or approximates an employee’s regular earnings.
However, there is no obligation on an employer to pay an employee on parental leave in the absence of a contractual obligation to that effect. Accordingly, while an employer cannot force a male employee to use vacation time rather than take the statutory parental leave to which he is entitled, a male employee cannot compel an employer to pay for the time off unless he has some contractual right to leave with pay.
The question whether an employee who wishes to take time off can be forced to use vacation time may be determined to some extent by employment standards provisions, employer policies, employer practices or collective agreements. Although vacation scheduling falls within management rights as a general rule, it is not unusual for limits to be placed on the exercise of those rights, particularly in a unionized environment. The employer’s right to schedule may also be affected if, for example, the employee’s annual vacation has already been approved for a later date and the employee has acted on the basis of that prior approval.
If there are no contractual or factual constraints on the employer’s right to schedule vacations in a particular employment relationship, the employer may be within its rights to schedule the employee’s vacation at the time of his absence.
Tim Mitchell is a partner with Laird Armstrong in Calgary who practices employment and labour law. He can be reached at [email protected] or (403) 233-0050.
