Welcome. This article is about the leave of absence from work parents in Ontario take when they have children called Parental Leave.
Employees in Ontario are entitled to (1) a leave of absence called Parental Leave and (2) money from the government called EI during that leave. This article is mostly about the former (1) not the latter (2). The Ontario government runs the Parental Leave scheme and the federal government runs the EI scheme. One does not need to apply for a Parental Leave, but they do have to apply for EI if they want money from the government during the leave.
What is Parental Leave in Ontario?
Parental Leave in Ontario is a leave of absence from work commencing after a baby is born.
Parental Leave is an employment standard enacted by the Ontario government in section 48 of the Employment Standards Act, 2000. The Employment Standards Act, 2000 Parental Leave law applies to all employees and employers regulated by the Ontario government.
Very few employees and employers in Ontario in niche industries like air travel and railroads are regulated by the federal government, so the Employment Standards Act, 2000 and the Ontario Parental Leave standards discussed below do not apply to them. Rather, the Canada Labour Code applies to these employees. Still though, the Canada Labour Code is similar to the Employment Standards Act, 2000 Parental Leave standards in that it provides the same time for Parental Leave as Ontario (63 weeks).
What is the Difference between Parental Leave and Pregnancy Leave?
Parental leave in Ontario is for both parents, whereas Pregnancy Leave (which some people call maternity leave) is only for birth mothers. Parental Leave is 63 weeks and must be taken after the baby is born. On the other hand, Pregnancy Leave is for 17 weeks and must be taken before the baby is born. To be clear, birth mothers are entitled to Pregnancy Leave and Parental Leave.
Read more about Pregnancy Leave in Ontario.
What is Paternal Leave?
Paternal Leave does not exist in Ontario. Rather, fathers take Parental Leave.
Is Parental Leave Paid?
No, in Ontario, Parental Leave is not paid. An employer does not need to pay an employee on Parental Leave in Ontario. However, employers are free to pay any amount to employees for all or a portion of the the Parental Leave period. Leading employers usually pay full salary and bonus over the first several months of the Parental Leave period in an effort to attract top candidates.
However, parents who qualify are entitled to Maternity and Parental employment insurance (EI) from the federal government:
|EI Type||Maximum weeks||Benefit rate||Weekly max|
|Maternity (for the person giving birth)||up to 15 weeks||55%||up to $573|
EI Maternity benefits are then followed by EI parental benefits:
|EI Type||Maximum 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 may apply for EI here.
Are Work Benefits Covered During Parental Leave?
Yes, even though employers do not have to pay wages over Parental Leave, employers in Ontario are required to pay for and maintain the same benefit plans for employees on Parental Leave. For example, an employer must pay for pension plans, life insurance plans, accidental death plans, extended health plans, dental plans and any prescribed type of benefit plan for employees who go on Parental Leave over the whole leave period.
Employees who pay for benefits themselves or split them with their employers who do not wish to be covered by work benefits during Parental Leave must write to their employer telling them to cancel the benefits. Otherwise, they have to contribute to these benefit plans over the Parental Leave period.
Who Qualifies for Parental Leave in Ontario?
Any “parent” who has been employed by an employer for 13 weeks is entitled to parental leave in Ontario. The 13-week rule is not a requirement that the employee worked the last 13 weeks before the Parental Leave. Rather, all that is required is that the employee worked 13 weeks for the employer any time, ever.
Moreover, to qualify for Parental Leave in Ontario, it does not matter whether the parent works full-time, part-time, permanent or on a fixed-term contract. All the different kinds of employees get Parental Leave in Ontario.
Nevertheless, bonafide independent contracts do not qualify for Parental Leave. This is because independent contractors are not considered “employees” under the Employment Standards Act, 2000 (Ontario).
Related: Are you truly an independent contractor?
Who is a “Parent”?
Only parents qualify for Parental Leave, of course. In Ontario, a parent can be a woman, man or non-binary person. In Ontario, a parent is defined as:
- a birth mother; or
- non-birth mother; or
- a father; or
- a person with whom a child is placed for adoption; or
- a person who is in a relationship of some permanence with a parent of a child and who intends to treat the child as his or her own.
Do both Parents Qualify for Parental Leave in Ontario?
Yes, both parents qualify and can take Parental Leave in Ontario.
Can Parents take Parental Leave at the Same Time?
Yes, Parents can take Parental Leave at the same time. Or they can take Parental Leave at different times within 78 weeks after the baby is born.
There is no split or combination or formula for how long both parents can take Parental Leave. Both parents get 63 weeks of Parental Leave if they choose (but see below: birth mothers who went on Maternity Leave only get 61 weeks of Parental Leave).
When can Parental Leave in Ontario begin?
Birth mothers who have taken pregnancy leave must begin their Parental Leave when their Pregnancy Leave ends unless the child has not yet come into her custody, care and control for the first time (i.e. if the baby is still at the hospital).
For everyone else, including birth mothers who did not take pregnancy leave, Parental Leave in Ontario can be taken anytime within 78 weeks of the birth of the baby.
How long is Parental Leave in Ontario?
There is a maximum of 63 weeks of Parental Leave for each parent. It is important to stress that each parent can each take 63 weeks’ Parental Leave – there is no combination maximum. In fact, Parental Leave entitlements are not combined at all. Each parent gets their own 63 weeks of Parental Leave.
However, birth mothers who took Pregnancy Leave are only entitled to up to 61 weeks’ Parental Leave. In other words, birth mothers who took a Pregnancy Leave get two fewer weeks of Parental Leave. All other new parents are entitled to up to 63 weeks’ Parental Leave. All parents may choose to end the leave early. They do not have to take the full amount of Parental Leave.
Ontario Parental Leave Table
|Parent||Maximum Parental Leave|
|Birth Mother who took Pregnancy Leave||61 Weeks|
|Birth Mother who did not take Pregnancy Leave||63 Weeks|
|Parents who did not give birth||63 Weeks|
Telling an Employer You are Going on Parental Leave
The Employment Standards Act, 2000 (Ontario) says that employees in Ontario must tell their employer they are taking Parental Leave two weeks in advance.
However, if a child comes earlier than expected, Parental Leave starts the first day the employee stops working. In this scenario, employees do not need to give two weeks’ notice. However, within two weeks after stopping work, the employee must tell the employer he or she is on Parental Leave. In this regard, employees can abruptly take Parental Leave and wait two weeks to tell the employer they are on Parental Leave. However, it is advised for professional reasons to tell the employer about the Parental Leave soon as the parent has a reasonable opportunity once they have settled in at home with the baby
An employee can change their mind by taking the Parental Leave earlier or later, but they still need to provide two weeks’ notice.
There is no requirement to tell the employer how long the Parental Leave is going to be. It should be assumed by all employers that an employee is taking the full amount of time off (63 weeks, generally). However, an employee may tell the employer when they plan to return, and, if the employee changes his or her mind, he or she may give notice to come back earlier or later as discussed below.
Ending Parental Leave
An employee seeking to return from Parental 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 your Job after Parental Leave
Employees are free to choose not to return to work after Parental Leave has expired, but an employee must give at least four weeks’ written notice of his or 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.
Parental Leave and Vacation
Employees on Parental Leave may defer accrued vacation time from before the Parental Leave occurred until the exact date Parental Leave expires. In other words, vacation time can be differed to the beginning of the 64th week after the employee left work for Parental Leave. Likewise, only if the employer agrees in writing, the employee can defer vacation to some other later date.
Do Employees Accrue Vacation over Parental Leave?
Yes, employees accrue Vacation Time over Parental Leave in Ontario. However, employees do not accrue Vacation Pay on Parental Leave in Ontario.
Interested in learning about the difference between Vacation Time and Vacation Pay? Please read our guide to vacation pay.
Job Protections During Parental Leave
Jobs: An employee’s job is protected for when they return from Parental Leave. By law, upon the conclusion of an employee’s Parental Leave, the employer shall 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 Parental 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 he or she worked throughout the leave.
Seniority During Parental Leave
Parents on Parental Leave continue to accrue seniority on Parental Leave. For example, if someone is terminated from work years down the road, their time on Parental Leave would be considered employment. In other words, if Susan worked 5 years, but was on Parental Leave for 2 years, she would be considered a 5-year employee in calculating her severance.
What Happens if Employer Terminates an Employee on Parental Leave
The Employment Standards Act, 2000 and the Ontario Human Rights Code prohibits termination because of taking or attempting to take Parental Leave. Employees terminated from their job because they went on or said they were going on Parental Leave are entitled to reinstatement, lost wages and general damages for the injury to their dignity and self-worth. Read more about these human rights protections in the workplace here.
However, just because an employee is on Parental Leave does not mean they can not be terminated. Employees on Parental Leave are not bulletproof. An employer is free to terminate an employee on Parental Leave like any other employee so long as the reason for the termination is unrelated to the Parental Leave. Nevertheless, this is a challenge for employers to prove, especially if the employee on Parental Leave is the only one terminated. It is the onus of employers to prove that the termination was unrelated to the employee’s Parental Leave and it is a heavy burden. If the reason for the termination was even 1% related to the Parental Leave, it will be a discriminatory termination.
In other cases, for example, where all the employees in a single department were terminated, it would be much easier to terminate an employee on Parental Leave.
Adverse Treatment Before or After Parental Leave
Just as employers are prohibited from terminating employees because of Parental Leave, it is forbidden to treat an employee any different for taking Parental Leave in Ontario. To that effect, some examples of prohibited employer behavior include:
Harassment of employees because they are pregnant is prohibited. Harassment could include touching a pregnant woman’s abdomen, joking, teasing or commenting on her appearance or weight.
Employment contracts or term employment should not be ended early because of pregnancy or the intention to take maternity leave.
Less challenging tasks should not be given because of pregnancy unless specifically requested.
Promotional opportunities should not be denied because of pregnancy or intention to take maternity leave.
See more at the Canadian Human Rights Commission.
Parental Leave and Fixed Term contracts
In Ontario, there is no law on the issue of Parental Leave and Fixed Term contracts, but we would put forth that an employer does not have to extend an employee’s fixed-term employment contract because they’re taking unpaid Parental Leave. If the employee is on a fixed-term contract and it ends, and it’s not renewed while they are on unpaid Parental Leave, they’re not entitled to return to the job. However, if the employee is on a fixed-term contract and the Parental Leave ends before the fixed-term contract, they’re entitled to return to the same job and complete the contract.
Nevertheless, per the Human Rights Code, an employer cannot choose not to extend the fixed term contract or make another one because of the Parental Leave. The choice to not renew a fixed-term contract must not be discriminatory.
Miscarriages and Stillbirths and Parental Leave
An employee who has a miscarriage or stillbirth, or whose spouse or same-sex partner has a miscarriage or stillbirth is not eligible for Parental Leave. However, if a mother has a miscarriage or stillbirth within the 17- week period preceding the due date, she is eligible for Pregnancy Leave. At the same time, the non-birth parent could be entitled to Sick Leave.
Jeff is a lawyer in Toronto who works for a technology startup. Jeff is a frequent lecturer on employment law and is the author of an employment law textbook and various trade journal articles. Jeff is interested in Canadian business, technology and law, and this blog is his platform to share his views and tips in those areas.