Entitlement to Pregnancy and Parental Leave under Ontario’s Employment Standards Act
The Employment Standards Act (ESA) establishes that employees in Ontario are entitled to take an unpaid leave of absence from their job due to pregnancy or to care for a child. To be eligible for pregnancy or parental leave under the ESA, the employee must be working in a provincially regulated industry and properly classified as an employee rather than an independent contractor. Employers must allow eligible employees to go on either type of leave and cannot penalize those employees in any way upon their return to work.
Pregnancy Leave under the ESA
A pregnant employee can take pregnancy leave any time from 17 weeks before their due date up until they give birth. However, if the employee has a miscarriage or stillbirth, they are not entitled to commence a pregnancy leave. One further exception is that the pregnant employee’s due date must be at least 13 weeks after they commenced their employment to be eligible for the full leave provided under the ESA.
Pregnancy leave can last up to a maximum of 17 weeks. An eligible employee is allowed to commence their pregnancy leave as early as 17 weeks before their due date. The last day one can begin their pregnancy leave is the date they give birth. However, if the employee has a miscarriage or stillbirth, they are not entitled to commence a pregnancy leave.
Employees who take pregnancy leave are also entitled to take parental leave so long as they meet the specific eligibility criteria for parental leave discussed below. An employee who has taken pregnancy leave can also take a maximum of 61 weeks of parental leave. If, however, the employee is not entitled to parental leave, their pregnancy leave must end 12 weeks after the birth, stillbirth, or miscarriage regardless of when the leave commenced.
Parental Leave under the ESA
To be eligible for parental leave, the employee must be a “parent” as defined under the ESA. This includes the biological mother or father of a newborn child; an adoptive parent; and a person who has custody, care, or control of the child in question. The parent must also have been working for at least 13 weeks before commencing the parental leave. Note that unlike pregnancy leave, parental leave requires the child to have already been born when the parent commences their leave and a miscarriage or stillbirth will disentitle the employee from parental leave.
Parental leave generally lasts a maximum of 63 weeks, unless the employee also took pregnancy leave. The primary exception to this is when the employee has also taken pregnancy leave, in which case they would only be entitled to 61 weeks of parental leave. All employees who intend to take parental leave must commence their leave no later than 78 weeks after the child was born or came into their care.
How to take pregnancy and parental leave
Employees must give their employers at least two weeks’ written notice when they intend to take either pregnancy or parental leave. The employee taking the leave should tell their employer the length of leave they intend to take; otherwise it is assumed that the employee intends to take the maximum leave. If an employee intends to end their leave ahead of schedule, they must give their employer 4 weeks’ notice that they will be returning to work.
In some cases, an employee may have to stop working suddenly due to the birth of a child or a child coming into their care earlier than expected. When this happens, the employee must notify their employer in writing that they will be taking a leave within two weeks of the date they stopped working. The length of their leave will be determined from the date they stopped working, not the date they provided the notice.
Remember – Pregnancy and Parental Leave are Unpaid
Although some employers may continue to pay employees who are on pregnancy or parental leave, the ESA does not require employers to do so. Employees whose pregnancy or parental leave is unpaid should look into their eligibility for Employment Insurance (EI) maternity and parental benefits. Eligible employees could receive 55% of their earnings, up to a maximum of $668 per week, while on pregnancy or parental leave. The eligibility criteria for these programs is different than the criteria for pregnancy and parental leave under the ESA, so expecting parents should investigate their eligibility under the Employment Insurance Act when planning a pregnancy or parental leave.
Learn more here:
https://www.canada.ca/en/services/benefits/ei/ei-maternity-parental.html
This is legal information and not legal advice. If you need further information or need legal advice, please call our Intake Line at 416-441-1764 ext. 1 or complete our online Intake Form.