Parental leave requested by worker who may not be involved with child

Does employer have to provide leave if employee is not primary caregiver?

Leah Schatz

Question: Does an employer have to provide parental leave to an employee who is the biological father of a baby but it knows the employee isn’t really involved with the care of the child (for example, the mother has a new partner and is estranged from the employee)?

Answer: Human rights legislation generally prohibits employers from discriminating against employees on the basis of protected grounds with respect to the terms and conditions of employment. Depending on the applicable human rights legislation, the protected grounds of family status and gender would likely be engaged.

As such, an employer that refuses an employee’s request for leave on the basis of these protected grounds will likely find itself on the receiving end of a human rights complaint.

Whether or not the employee is successful is another question and will depend on the unique circumstances of the case.

First, it is reasonable for an employer to expect that this employee is taking the leave for purposes related to parenting the newborn child.

Certainly, an employee who is taking his statutory parental leave should not be using that time to go backpacking across Europe for a few months.

However, an employer should avoid making any assumptions about the employee’s circumstances based on that employee’s gender and family status. Just because an employee is not the primary caregiver does not mean she is not entitled to take parental leave.

Employers will want to reference the applicable employment standards legislation. Most jurisdictions do not impose the condition that the employee be the “primary caregiver.”

In Manitoba, for example, an employee must have simply become “a” parent of a newborn child.

The entitlement to leave begins once the child is born, adopted, or comes into the care and custody of the employee. 

Federally regulated employees are subject to more specific requirements.

Section 206.1 of the Canada Labour Code states that employees are entitled to parental leave “to care for a newborn child of the employee” or “a child who is in the care of the employee for the purpose of adoption.”

Thus, if the employee in this scenario is a federally regulated employee, she will need to be involved with the care of the child.

Based on the law in each respective jurisdiction, as long as the employee works for the required length of time (if any), the employee is generally entitled to the statutorily prescribed parental leave.

The qualification period between the provinces varies. For example, in Saskatchewan and Ontario, the qualification period is 13 weeks’ service.

In Manitoba, the employee must have worked at least seven consecutive months with the employer.

Federally regulated employees must have six consecutive months’ employment with the employer.

Although this employee’s parental leave needs to be legitimately connected to parenting, the employer will want to avoid making any assumptions based on this employee’s perceived family status.

Parenting arrangements between estranged spouses can take many forms and human rights legislation recognizes this.

Leah Schatz is a partner at MLT Aikins in Saskatoon. She can be reached at (306) 975-7144 or [email protected]

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