Employer obligations for maternity leave

Carefully check applicable legislative, contractual requirements

Colin Gibson

Question: What is an employer legally required to provide to employees who are on maternity leave, such as vacation accrual, benefits or sick leave?

Answer: The legal obligations an employer owes to an employee who is on pregnancy or parental leave are determined by the applicable employment standards and human rights legislation, as well as the contract of employment or collective agreement.

Employment standards legislation in all Canadian jurisdictions provides employees on pregnancy or parental leave with certain protections.

In Ontario, for example, s. 51 of the Employment Standards Act, 2000, requires an employer to continue benefits for employees on pregnancy or parental leave, unless the employee elects in writing to cease participating.

The benefits that must be continued include pension, life insurance, accidental death and dismemberment, extended health, dental and any other prescribed benefits that are related to employment.

The employer must continue to pay its share of the benefit premiums, unless the employee gives written notice that the employee doesn’t intend to pay the employee’s share.

Employees on pregnancy or parental leave are also entitled to continue to earn credits toward length of employment, length of service and seniority during their leave, and to continue to accrue service for the purpose of calculating vacation entitlement.

In British Columbia, section 54(2) of the Employment Standards Act prohibits an employer from changing conditions of employment of an employee who takes pregnancy or parental leave without the employee’s consent, and section 56(1) deems the employee’s service to be continuous when calculating vacation and severance entitlements, and for the purposes of any pension, medical or other plan beneficial to the employee.

Section 56(2) requires an employer to continue to pay its normal share of the benefit and pension plan premiums for an employee on pregnancy or parental leave, unless the employee fails to pay her normal share.

Section 56(3) of the B.C. act also specifies that employees are entitled to all increases in wages and benefits that the employee would have been entitled to had the pregnancy or parental leave not been taken.

In BCTF v. British Columbia Public School Employers’ Assn., the B.C. Court of Appeal ruled that teachers on pregnancy and parental leaves were entitled to be credited with experience for salary increment purposes while on leave as if they had been teaching during such periods.

Human rights legislation prohibits discrimination in employment on the basis of a number of prohibited grounds, including sex and disability.

Accordingly, if an employer provides its employees with benefit packages, it must do so in a non-discriminatory way.

For example, in Renfrew County and District Health Unit v. Ontario Nurses’ Assn. (Robertson Grievance), an arbitrator determined that a refusal by an employer to provide a nurse with pregnancy supplement wages constituted discrimination.

In that case, the employee was required by her doctor to go on bed rest 18 weeks into her pregnancy. The employee took unpaid sick leave for the next 20 weeks, until the official commencement of her pregnancy leave.

Under the terms of the collective agreement, employees were entitled to supplementary pregnancy leave pay based on their average income in the 20 weeks immediately preceding the start of the pregnancy leave. On the basis that the employee did not receive pay during those 20 weeks, the employer denied this supplementary pay.

The arbitrator ruled that complications from the employee’s pregnancy had prevented her from working, and that it
was discriminatory not to provide her with the pregnancy leave
top-up pay.

The applicable employment contract or collective agreement may also require an employer to provide additional benefits to employees who are on pregnancy or parental leave.

An example would be a wage top-up, to supplement employment insurance benefits. The law permits the parties to enter into such agreements, so long as the contractual provision meets or exceeds any minimum entitlements under the applicable legislation.

As a result, employers should be sure to carefully check the applicable legislative and contractual requirements to determine the nature and level of benefits that must be provided to employees on pregnancy or parental leave.

For more information see:

BCTF v. British Columbia Public School Employers’ Assn., 2013 CarswellBC 981 (B.C. C.A.).
Renfrew County and District Health Unit v. Ontario Nurses’ Assn. (Robertson Grievance), [2013] O.L.A.A. No. 311 (Slotnick).

Colin G.M. Gibson is a partner at Harris and Company in Vancouver. He can be reached at (604) 891-2212 or cgibson@harrisco.com.

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