Under Section 48 of the Ontario Employment Standards Act (“ESA”), employees are entitled to parental leave. This leave is job-protected and generally unpaid, meaning an employee cannot be fired for taking parental leave but their employer is also not required to pay their regular wages during their time off.
Navigating parental leaves can be challenging, for both the employee and the employer, between managing coverage, handling benefits, and overall ensuring a smooth transition of work. Given all the moving parts, it can be easy for employers to overlook certain legal requirements. These types of mistakes not only can affect workplace morale, but they can also lead to serious and costly human rights complaints or wrongful dismissal claims.
Entitlement to a Parental Leave
Employees entitlement for parental leave arises after the birth of a child or the coming of a child into the custody, care and control of the employee for the first time (i.e. in cases of adoption). Parental leave cannot commence before the birth of a child or before the child comes into the employee’s care. In other words, the employee must be a “parent” in order to take this leave.
Eligibility for Parental Leave
In order to be eligible to take parental leave, an employee must:
- Be subject to the ESA
- Been employed for at least 13 weeks prior to commencement of the leave; and
- Be the parent of a new child.
The ESA stipulates that parental leave must be commenced within 78 weeks of either the date the child was born, or the date the child came into the parent’s custody, care and control for the first time. There are some nuances if a child has significant medical issues, requiring a lengthier stay in hospital, these dates may change as the child has not come into the parents care and control until a later date after birth. For adoptive and non-birth parents, the 78 weeks begins from the date the child first comes into the parent’s custody, care and control.
For a birth parent who has taken a pregnancy leave, the ESA requires that their parental leave commence immediately after the pregnancy leave, subject to special circumstances. An Employee cannot return to work in between a pregnancy leave and a parental leave. Although two parents can split up this leave time.
Notice Requirements and Length of Leave
Employees who wish to take parental leave are required to give at least two weeks’ notice in writing to their employer. This goes for employees who took pregnancy leave before their parental leave as well. They are not required to give notice of both leaves at the same time. It’s important to note that some employers will ask for more notice, but under the ESA the minimum requirement is two weeks. The same applies to employees who wish to change the start date of their parental leave.
If a child is born early and/or comes into parental care and control earlier than expected, the employee’s leave will commence the day they actually stop working.
Employees who take pregnancy leave prior to parental leave are entitled to 61 weeks leave, and employees who did not take pregnancy leave are entitled to 63 weeks leave. There is no obligation for employees to take the full amount of leave, and they always have the option to return to work at an earlier date.
Returning from Parental Leave
If an employee wants to change their leave return date, and/or end their parental leave earlier than the date they originally stipulated, they must give the employer four weeks’ written notice. Once an employee returns from their leave, even if at an earlier date, they are considered to have ended their leave. If an employee wants to resign during their parental leave, they must also give their employer four weeks’ written notice of their intention to resign on or before the expiry of the leave.
Employer Cautions
Parental leaves are job-protected leaves, meaning eligible employees are entitled to take this leave without the fear of reprisal or losing their job, being disciplined, or being subject to worse employment terms upon return. Employers are required to reinstate employees to their original position, or if not available, a comparable role.
If you are an employer and have questions about employees taking parental leave, get in touch with a Toronto Employment Lawyer for a consultation.
