Tough questions about maternity leave

Common problems employers run into when dealing with workers on leave

At first glance, legislative protection for workers on maternity or parental leave seems straightforward enough. It’s one of the more uniform workplace protections provided by labour standards right across the country, and it’s perhaps one of the legislative provisions that employers are most acquainted with.

That doesn’t mean, however, that the maternity and parental leave provision is entirely hassle-free for employers or that all the questions around the provision have been resolved. For an overview of the issues employers still grapple with, Canadian HR Reporter asked two employment lawyers — Neena Gupta, who works out of the Waterloo, Ont., office of Gowling Lafleur Henderson, and Natalie MacDonald, Toronto-based lawyer at Grosman, Grosman and Gale — to identify questions that are still up in the air.


In most jurisdictions, the employer has to maintain the benefits for an employee who’s off on maternity or parental leave. The Supreme Court of Canada, in the 1989 case of Brooks v. Canada Safeway, ruled that if pregnant employees receive less favourable treatment under a particular benefit plan, that plan is discriminatory. The Brooks case involved sick leave and disability benefits.

Employers have long been advised that they should maintain benefits such as medical and dental care, life insurance and accidental death coverage as well as pension contributions. But what about perks such as the company car, the BlackBerry or the Visa account?

“I have had situations where people say, ‘In my contract of employment, the employer says one of my benefits is the company car.’ That becomes a real friction point,” said Gupta.

Referring to section 51(2) of Ontario’s Employment Standards Act, Gupta said it’s clearly spelled out that the benefits to be protected are pension plans, life insurance plans, accidental death plans, extended health plans, dental plans and any prescribed type of benefit plan.

Gupta added that one way employers can avoid the issue altogether is to explicitly refer to these extras as “tools of the job.” Well ahead of any situation arising, employers should make it clear why they give out the company car and on what conditions they will take it back. If the subject comes up only when an employee announces she’s pregnant and will go on maternity leave, “it can be misperceived as retaliation or constructive dismissal.”

Comparable job

Every jurisdiction in Canada requires employers to reinstate an employee to her former position or to a comparable position following a maternity or parental leave. The position the employee returns to must be one with equivalent wage and benefits. In the federal jurisdiction, the position an employee returns to must be in the same location.

Before considering reinstating a person into a comparable position, employers had better make sure the job the person used to do does not exist in a different form, cautioned Macdonald.

“The law is such that the job still exists if you can take pieces of the job from the other employees who were part of the division of (that job) and put it all back together,” she said.

Then, when finding a comparable position, employers should carefully consider what constitutes a comparable position.

In C.E.P., Local 191 v. Winnipeg Sun, an arbitration case heard last year, a salesperson at the newspaper was given a different set of clients when she returned from work. The new list of accounts didn’t generate as much revenue as the one she had prior to her leave. As a result, the board of arbitration ruled, she hadn’t been reinstated in her original or a comparable job. It’s not only wages and benefits that must be considered. Status, responsibility and working conditions must be similar for positions to be considered comparable, the board ruled.

This concept can have far-reaching implications for employers, said Gupta. Take a corporate legal secretary, who has been working with two lawyers, who goes on leave. She comes back and is given a position with two other lawyers.

“Where the tension is, is her job being a corporate secretary to the law firm, or is it being a corporate legal secretary to Mr. X and Ms Y?” said Gupta.

“Unfortunately, I think the courts will be more sympathetic in this hypothetical situation, because if a person has worked for Mr. X and Ms Y for 10 years, the implication is they’ll return to working with those two persons,” said Gupta. “I don’t know if the implication is the same if there’s a lot of mobility in the job.”


The laws across the country allows employers to terminate or lay off an employee on or coming back from maternity leave for reasons completely unrelated to the leave, such as restructuring, downsizing or suspension of operations. MacDonald said employers should tread carefully around this issue, because “there’s an automatic burden to prove that it’s not related to pregnancy.”

If no temporary workers are available, and the company determines it can’t hold the job open for the worker, employers might want to have a candid chat with the employee as to how to resolve the situation, said Gupta.

“The employer should negotiate a package with the employee because, otherwise, the courts will come down extremely hard against the employer,” she said.

The severance, in this case, should take into account the severe difficulty a pregnant employee would face in finding another job.

When offering the severance, employers may want to be sensitive about how this payment would affect the employee’s entitlement to employment insurance or disability.

“What I often counsel employers to do is to tell the employee that this is coming down the pipeline and indicate to the employee that they would be flexible as to when the severance is paid,” said Gupta.

The employee might want to take disability first, then go on EI and only take the severance after the leave. In that case, the employer would be wise to continue the employee’s benefits coverage.

“If I cut her off, and she’s injured, she can sue me and I can’t go to my group benefit insurer because I’ve already cut it off. Now I’ve got an uninsured liability for the rest of her life,” said Gupta. “When you’re dealing with insurance, it’s better to pay the premium for a little bit longer to make sure that the company does not face a claim.”

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