The idea of “family” is a dynamic concept that has evolved over time in tandem with social realities and values. As such, the law must adapt in accordance with these evolutions to support different paths to parenthood.
This notion is reflected by the newly enacted section 47.1 of the Employment Standards Act (“ESA”), which was introduced by the Working for Workers Six Act, 2024. This amendment fills a crucial legislative gap by extending job-protected leaves of absence to parents introducing a child through adoption, surrogacy, or other non-biological circumstances, which were not historically eligible for parental leave. It is important to note that this provision is not in force yet.
Eligibility and Notice Requirements
To qualify, an employee must have been employed for at least 13 weeks before the scheduled leave is set to begin. Employees must provide their employer with two weeks’ written notice that indicates the intended start and end dates. If the employer chooses, they may request “evidence reasonable in the circumstances” to verify the employee’s entitlement to the leave.
If the placement occurs earlier than the expected date, the leave begins immediately and the employee has two weeks after stopping work to give written notice to their employer. If an employee is on leave and the placement fails, the leave will continue for 14 days after they are notified, unless the employer and the employee mutually agree to end it sooner.
If the employee wants to change the start date of their leave, they must provide a new two-week notice. However, if the employee wishes to modify the end of their leave or decides to resign instead of returning to work they must provide their employer with four-weeks’ written notice.
| Requirement | Detail |
|---|---|
| Eligibility | Employed for at least 13 weeks before the leave starts. |
| Standard Notice | Two weeks’ written notice of start/end dates |
| Early Placement | Leave begins immediately; the employee has two weeks after stopping work to give written notice. |
| Changing Start Date | Requires a new two-week notice. |
| Modifying End/Resignation | Requires four-weeks’ written notice. |
What entitlements does it protect?
Eligible employees are entitled up to 16 weeks of unpaid, job-protected leave, which must be taken in a continuous block of time. This means that an employee cannot take a portion of their leave, go back to work, and then return to their leave. An important caveat is that if two parents work for the same employer, the total combined leave they are entitled to is 16 weeks.
The leave can begin as early as six weeks before the expected placement date or on the actual day the child arrives in the employee’s care. The leave must then end 17 weeks after the placement actually occurs, not the expected date.
Why does this matter?
This statutory update reflects the legislature’s intent for a more inclusive understanding of parenthood that evolves beyond traditional biological and heterosexual norms. By modernizing parental job protections, this amendment offers economic security and employment continuity for same-sex couples, families facing fertility challenges, and other families with contemporary caregiving structures. In doing so, the ESA now more accurately reflects the diversity of family structures.
Ultimately, the ESA sets a statutory floor to ensure vulnerable employees are protected. By adding this provision the legislature has expanded the scope of protections to parents that did not fit the “traditional” concept of parenthood.
Employers looking to update their policies and employees planning their families should reach out to the team at Greenwood Law to navigate these new protections and obligations (when they come into force).
