This article summarizes Maternity Leave, which is the protected job leave birth mothers take in Ontario. Maternity leave is not to be confused with Parental Leave or EI maternity benefits, which are separate schemes discussed below.
What is Maternity Leave in Ontario?
Maternity Leave in Ontario is an unpaid leave of absence from work commencing before the baby is born or on the day the baby is born at the latest.
How long is Maternity Leave? Maternity Leave is 17 a maximum of weeks.
Maternity Leave is an employment standard made pursuant to section 46 of the Employment Standards Act, 2000 (“ESA”). The ESA Maternity Leave law applies to all employees in Ontario except those rare employees regulated by the federal government (i.e. airlines, railroads, etc.).
Maternity Leave is optional.
Birth mothers are entitled to “Maternity leave” and then a “Parental Leave”
Difference Between Maternity Leave and Parental Leave
Maternity leave in Ontario is just for the birth mother, whereas Parental Leave is for both parents.
Nevertheless, birth mothers are entitled to Maternity Leave and Parental Leave.
Maternity Leave is 17 weeks. Birth mothers who took Maternity Leave are entitled to 61 weeks’ Parental Leave. Birth mothers who did not take Maternity Leave are entitled to 63 weeks’ Parental Leave.
In summary, the difference between Maternity Leave and Parental Leave is that Maternity Leave is essentially only for pregnant women. Parental Leave is a separate, longer leave for all parents. These are separate leaves and the birth mother may take both leaves, but non-birth mothers can only take Parental Leave. Both leaves are unpaid.
Click to read more about Parental Leave in Ontario.
What is Pregnancy Leave?
Pregnancy Leave is the same thing as Maternal Leave, it’s just another word for Maternity Leave. In fact, parents should be aware that although it makes no difference, “Maternity Leave” is not actually the correct term for the leave birth mothers take in Ontario. In Ontario, Maternity Leave is correctly called “Pregnancy Leave” under the ESA. However, for the purpose of the article, we will use both terms interchangeably.
Who Qualifies for Maternity Leave in Ontario?
All employees in Ontario get Maternity Leave so long as they worked at least 13 weeks for their employer.
Only biological birth mothers can take Maternity Leave in Ontario.
When can Pregnancy Leave in Ontario Begin?
Maternity Leave must be taken within 17 weeks before the due date and the day the baby is born.
Note that Parental Leave is for 61-63 weeks and must be taken on or after the day after the baby is born. Birth mothers who have taken pregnancy leave must begin their Parental Leave within 78 weeks after the baby is born.
How long is Maternity Leave in Ontario?
Birth mothers are entitled to 17 weeks of Maternity Leave. Keep in mind they can then go on Parental Leave for 61 weeks after Maternity Leave.
Applying for Pregnancy Leave
Employees don’t have to apply for Maternity Leave, they just tell their employer they are taking one. Keep in mind that employees must formally apply for employment insurance (“EI”) maternity benefits though (discussed below).
Telling an Employer You are Going on Maternity Leave
The ESA requires that employees in Ontario must tell their employer they are taking Maternity Leave two weeks in advance.
However, if the baby comes earlier than expected, the employee must tell the employer within two weeks after having the baby. In this scenario, employees can abruptly take Pregnancy Leave and wait two weeks to tell the employer they are on Maternity Leave.
An employee can change their mind by taking the Maternity Leave earlier or later, but they still need to provide fresh two weeks’ notice.
There is no need to tell the employer how long the Pregnancy Leave is going to be. It should be assumed by all employers that an employee is taking the full amount of time off (17 weeks plus 61 weeks thereafter for Parental Leave).
Still, though, an employee can tell the employer when they plan to return, and, if the employee changes her mind, she may give notice to come back earlier or later as discussed below.
Maternity Leave and Doctor’s Notes
Bizarrely, the ESA allows an employer to ask for a doctor’s note stating the baby’s due date. In this regard, an employee must provide a doctor’s note evidencing the baby’s due date if the employer asks for it. This rule is non-sensical (leaves are unpaid), and it amounts to undue hassle and burden on expecting mothers and their doctors, but it must be followed where requested.
Returning from Maternity Leave
An employee seeking to return from leave must give their employer four weeks’ advance notice. The employee can change their mind by providing four weeks’ notice again of the new date to return.
Quitting after Maternity Leave
Employees are free to choose not to return to work after the leave has expired, but an employee must give at least four weeks’ written notice of her resignation. Employees should also check their contract for terms and conditions that say they must give more than four weeks notice for quitting their job.
Maternity Leave and Vacation
Employees on Maternity Leave may defer accrued vacation time from before the Maternity Leave occurred until the exact date Maternity Leave or Parental Leave expires, whichever comes later.
Employees do accrue Vacation Time over Pregnancy Leave in Ontario. However, employees do not accrue Vacation Pay on Maternity Leave in Ontario.
Want to learn about the difference between Vacation Time and Vacation Pay? Read our guide to vacation pay.
Seniority During Maternity Leave
Parents on Maternity Leave continue to accrue seniority on Maternity Leave. For example, if someone is much later let go from work one day, their time on Pregnancy Leave would be considered as ‘employment’. In other words, if Sandra worked 10 years, but was on Maternity Leave for 4 years, she would be a 10-year employee in calculating her severance, not a six-year employee.
What Happens if Fired due to Taking Leave
The ESA and the Ontario Human Rights Code prohibits termination because of taking or attempting to take Maternity Leave. Employees terminated from their job because they went on or said they were going on Maternity Leave are entitled to reinstatement, lost wages and general damages for the injury to their dignity and self-worth if they are terminated for taking a Pregnancy Leave. Read more about these human rights protections in the workplace here. This broad protection applies before, during and after taking a Maternal Leave.
However, just because an employee is on Maternity Leave does not mean they can’t be terminated. Employees on Maternity Leave can be legally terminated. An employer is free to terminate an employee on Maternity Leave like any other employee so long as the reason for the termination is completely unrelated to taking the Maternity Leave. Nevertheless, this is difficult for employers to prove, especially if the employee on Maternity Leave is the only one terminated. It is the onus of employers to prove that the termination was unrelated to the employee’s Maternity Leave and it is a heavy burden. If the reason for the termination was even a small bit related to the Maternity Leave, it will be discriminatory.
In other cases, for example, where all the employees in a single office were let go, it would be much easier to terminate an employee on Maternity Leave.
Pregnancy Leave Ontario Employer Obligations
Permission: An employer must permit an employee to take a Maternity Leave and a Parental Leave when they want. An employer cannot dictate any terms of Maternity or Parental Leave.
Treatment: Employers cannot treat an employee any different for asking for, taking, or returning from a Pregnancy Leave.
Jobs: An employee’s job is protected for when they return from Maternity Leave. According to the ESA, upon the conclusion of an employee’s Maternity Leave, the employer must reinstate the employee to the position the employee most recently held with the employer, if it still exists, or to a comparable position, if it does not.
Pay: The employer must pay an employee returning from Maternity Leave the greater of the same pay the employee most recently earned with the employer or the rate that the employee would be earning had she worked throughout the leave.
Is Pregnancy Leave Paid?
Maternity Leave is unpaid. in Ontario – an employer does not need to pay an employee on Maternity Leave.
However, parents who qualify are entitled to compensation called Maternity and then Parental employment insurance (EI) from the federal government:
|EI Type||Max weeks||Benefit rate||Weekly max|
|Maternity (for the birth mother)||up to 15 weeks||55%||up to $573|
EI Maternity benefits are then followed by EI Parental benefits:
|EI Type||Max weeks||Benefit rate||Weekly max|
|Standard Parental||up to 40 weeks, but one parent cannot receive more than 35 weeks of standard benefits||55%||up to $573|
|Extended Parental||up to 69 weeks, but one parent cannot receive more than 61 weeks of extended benefits||33%||up to $344|
Source: Government of Canada as of January 2020.
Individuals should review the application for EI maternity benefits here.
EI is not automatic, it is a separate right different from Ontario’s Maternity Leave scheme – they are not connected in any way. Pregnancy Leave is what gives employees the right in Ontario to leave work, while EI is what pays them on such leave.
Maternity EI benefits can start as early as 12 weeks before the expected date of birth or as late as 17 weeks after the actual date of birth.
Birth mothers should apply for EI maternity benefits as soon as they go on Maternity Leave. Birth mothers will receive their first EI payment about 28 days after they apply.
Are Work Benefits Covered During Pregnancy Leave?
Yes, although employers do not have to pay wages over Pregnancy Leave, employers in Ontario must pay for and maintain an employee’s benefits during their Pregnancy Leave. For instance, an employer must pay for life insurance plans, pension plans, extended health plans, accidental death plans, dental plans and any other type of benefit plan for employees who go on Maternity Leave over the whole leave period.
Employees who pay for their own benefits or split the cost with their employer must still contribute their share. Employees who pay for benefits themselves or split them with their employers who do not wish to be covered by work benefits during Maternity Leave must write to their employer telling them to cancel the benefits. Otherwise, they have to contribute to these benefit plans over the Maternity Leave period.
Contact Dutton Employment Law for legal advice about concerns regarding treatment related to employees taking or returning from Pregnancy Leave. Dutton Employment Law is a division of Monkhouse Law.
Jeff is an employment lawyer in Toronto. He is the Principal of the Dutton Employment Law Group at Monkhouse Law. Jeff is a frequent lecturer on employment law and is the author of an employment law textbook and various trade journal articles.