Employment laws in Canada allow new parents to take significant time off work through parental and maternity leave.
Unfortunately, employers and employees alike aren’t always aware of the rules around maternity leave. In my practice as an employment lawyer, I often get questions from people who are worried about keeping their jobs and being able to provide for their families because they need to take time off following the arrival of a newborn.
I tell clients they absolutely should not have to worry about job security while going through a major life event like welcoming a new family member.
Here are some of the most frequently asked questions my firm gets about parental and maternity leave.
Do you have to tell your new or prospective employer about your pregnancy?
If you’re interviewing for a new job while pregnant, you do not have a legal obligation to inform prospective employers. Similarly, if you’ve just started a new job and you are, or become, pregnant, you are not required to tell your new employer that you’re expecting.
Employers or prospective employers have no right to ask about a potential pregnancy. Human rights legislation makes it illegal for an employer to deny employment due to pregnancy.
When you do decide to tell your employer that you will be taking maternity leave, your employer cannot retaliate against you. It is illegal for an employer to penalize an employee for this reason.
Can an employee be disciplined if their performance suffers due to pregnancy?
Not all pregnancies go smoothly, and sometimes medical issues or complications arise. But employees are entitled to reasonable and legitimate accommodation in the workplace, as long as the request doesn’t place undue hardship on the employer.
If someone finds they can’t work as long or for as many hours due to their pregnancy and they ask their employer for accommodation, the company must comply with the request.
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For example, if an employee would like to arrange flexible work hours due to morning sickness or an inability to manage a long commute, their employer must make every effort to accommodate them.
If you’re pregnant and need time off for medical appointments — as most pregnant people do — then your employer must give you unpaid time off (if your job doesn’t come with paid sick days) to attend.
Can an employer hire a replacement for an employee on maternity leave?
An employer does have the right to bring in a replacement for an employee who is taking a leave of absence, including a maternity leave, for an extended period of time.
But what they cannot do is permanently transfer the job of the person on maternity leave to the replacement. When the maternity leave is over, the returning employee has the right to get their exact same job back.
If you return from leave and your employer informs you that your role at the company has been filled in your absence, contact an employment lawyer, like my team at Samfiru Tumarkin LLP, immediately.
An employment lawyer can assess your situation, determine if you have been wrongfully dismissed, and secure a fair and full severance package.
Can an employer give an employee returning from maternity leave a different position at the company?
Your employer cannot offer you a different position when you return from maternity leave.
I have seen situations where an employer hires a replacement for an individual on maternity leave, only to decide that they prefer the results generated by the substitute. The employer then permanently assigns the role to the replacement and offers a different position to the returning employee.
This move is ultimately illegal. An employee must return from a leave to the same job, duties, compensation and working location. If any of those terms of employment are significantly changed, the worker has a right to treat their relationship with the company as having been terminated.
In that case, an employment lawyer could pursue a constructive dismissal claim for severance, which could amount to as much as 24 months’ pay, depending on certain factors.
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An employer may legally be able to offer a comparable position to the returning employee if their job has legitimately been changed through restructuring or cutbacks. But I suggest that employees in that situation contact me before accepting an explanation from their boss so we can examine the veracity of their claim.
Can an employer fire an employee because they took maternity leave?
An employer can’t fire, let go or lay off an employee because they have taken maternity or parental leave. Employers who release an employee because they are pregnant or taking maternity leave are committing a human rights violation. This should be obvious, but every week I hear from many Canadians that this has happened to them.
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In many cases, the company won’t admit that they are letting an employee go because they are taking time off to care for and bond with their newborn. The employer may instead try to tie the termination to alleged poor performance or a “new direction” the business is taking.
Before you accept these rationalizations or sign off on an inadequate severance offer, connect with my employment law team. With our years of experience, we can help figure out whether the reason for your termination is genuine, how much severance you should receive and whether you are owed additional human rights damages.
Have you been let go while on maternity leave? Do you think your employer has violated your human rights?
Contact the firm or call 1-855-821-5900 to secure assistance from an employment lawyer in Ontario, British Columbia or Alberta. Get the advice you need — and the compensation you deserve.
Lior Samfiru is an employment lawyer and partner at Samfiru Tumarkin LLP, one of Canada’s leading law firms specializing in employment law and disability claims. He provides free advice as the host of Canada’s only Employment Law Show on TV and radio.