Four Things to Consider When Adopting a Parental Leave Policy

Employers typically consider maternity and parental leave policies when they want to incentivize employees to return from their leaves after having a child, and also when they realize that supporting their employees financially while on a period of a reduced income makes sense for long term employment relationship. Particularly, in the current Canadian job market which has been described as a “candidate” job market. Here are four things to keep in mind:

1. Is a policy necessary?

Unless there is anything additional or extra that you are providing your employees, your workers may already be protected by B.C.’s Employment Standards Act (the “Act”) (see sections 50 and 51), and the Employment Insurance (EI) regime. If your workforce is excluded from the Act (as are architects, engineers, lawyers, naturopaths, insurance agents, and others) you can still use the Act as a reference for how to manage these types of leaves[i].

2. What you need to know to get started.

If you decide that your organization needs a policy, make sure you understand the difference between:

    1. Maternity Leave, which includes an EI benefit maximum of 17 weeks. This benefit is for the person who is about to, or has, given birth; and
    2. Parental Leave, which includes an EI benefit maximum of 35 weeks (“standard”) or a maximum of 61 weeks (“extended”). This benefit is for either parent, or for adoptive parents.

Keep in mind that the parental leave can be taken once the maternity leave has expired, turning the standard leave into 52 weeks, and the extended leave into 78 weeks (18 months). Also keep in mind that Parental leave can be taken at any time within the first 18 months of the child’s life, or the first 18 months of the child being placed with the adoptive family.

3. Will you top up?

If you are providing your employees with a supplementary amount to their EI benefit, or “Top-UP” a policy is definitely recommended. Consider:

a. The reasons behind providing the Top-Up. If your goal is to incentivize parents to return from the leave and to stay with your organization, say so in the policy. Also, a repayment clause may be appropriate. For instance, “should you resign during the leave, or in a period of 6 months from your return from leave, you will repay the amount of the Top-Up in full”.

b. The amount of the Top-Up. Crunch the numbers and determine how much you can afford and for how long you will provide the Top-Up. Also consider what your competitors are doing. Some employers provide 60% of the difference between the employees’ pay and the EI benefit. Others provide much higher percentages, with some employers toping up to 100% of the wages. The period of time can also vary from 6 weeks on the lower end, to the full 78 weeks at the higher end, with most employers capping the top up somewhere between 35 weeks and 52 weeks. Because you will need to know how much the employee is receiving in EI to calculate the Top-Up amount, it makes sense for you to make the employee’s receipt of the Top-Up on the condition that they receive EI.

c. The eligibility for the Top-Up. Is this something you want to provide to all employees as of day one? Or something you want to reserve for your permanent full-time employees with a certain amount seniority? Since this is not a benefit that is required under the Act, you have flexibility as to who gets it and when, as long as you are not running afoul of the B.C. Human Rights Code.

4. What should happen while the employee is away.

If your workforce is covered by the Act, then you need to ensure to continue to calculate annual vacation, to continue benefits and to count their time away to their length of service with your organization, as if the employee was actively at work during that time. If the employee paid some of the premiums for the benefits, you can arrange for the payments to continue to be made by the employee while they are on leave.

Also, upon the end of the leave, employers have an obligation to provide the employee with their same position or an equivalent one. Make sure that anyone you hire to cover the employee that is on leave is hired under a temporary employment agreement with a notice of termination provision that allows you to welcome the employee on leave back without delay.

This blog is not intended to serve as legal advice, and only provides general information. Every situation must be considered on its own facts. Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].

[i] The information in this blog applies to workplaces that are provincially regulated and does not apply to workplaces that are federally regulated (i.e. banking, shipping, telecommunications) and covered under the Canada Labour Code (“CLC”). The maternity and parental provisions of the CLC are similar to those of the Act, and can be found at sections 206, and 206 of the CLC.

A Win for Mom – tribunal finds employer discriminated against employee on maternity leave

The Human Rights Tribunal recently found that Prince George Ford (“Ford”) discriminated against new mom Mellissa LaFleche based on sex and family status contrary to the section 13 of the Human Rights Code.  

While on maternity leave, employee Ms. LaFleche went to her employer, Ford for a meeting about her return to work. It was an informal meeting and Ford had not thought through what it was going to say. There was conflicting evidence about what Ms. LaFleche was told at that meeting, but the Tribunal found:

  • “the clear inference from this discussion is that, at best, Ms. Callaghan [the woman filling in for Ms. LaFleche during her maternity leave] would retain marketing manager duties and Ms. LaFleche’s role would significantly change”, (paragraph 44).
  • “It was clear from the surrounding discussion that [Ms. LaFleche] would not be returning to the same duties and role…” (paragraph 45).
  • LaFleche felt humiliated, distressed and nervous about money and lost sleep, her appetite, a sense of security and enjoyment of maternity leave (paragraph 50).

Ford told Ms. LaFleche that it would follow up with her after the meeting about what position or duties it would have for her on her return, but it did not.

The Tribunal considered whether Ford had constructively dismissed Ms. LaFleche – constructive dismissal is a form of termination of employment that occurs when an employer fundamentally unilaterally changes the terms of employment – and concluded Ford had. It ordered Ford to pay Ms. LaFleche significant wage loss damages (about $70,000 less about $3,750 already paid to her) and injury to dignity damages ($12,000). Notably, the award for wage loss damages included both actual wage losses of about 7.5 months wages (about $40,000) and loss of maternity and parental benefits during Ms. LaFleche’ next year long maternity leave (about $30,000).

Take-aways:
  • Moms / New Parents:  Being told by your employer that they like your replacement better and you’ll have different duties on your return to work is discrimination.
  • Employers: absent reasons totally unrelated to the employee’s leave, you need to return employees to the same position they held before going on leave. Think carefully about what you say to employees on leave and about how they could take it.

This blog is not intended to serve as legal advice, and only provides general information. Every situation must be considered on its own facts. Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].

Pregnancy Discrimination – Mom’s the Word

Monthly, sometimes weekly, and at times even daily, we are asked about expectant moms’ rights:

  • I announced that I am pregnant and was:
    • passed over for a promotion,
    • denied opportunities or training,
    • left out of meetings,
    • reassigned to work on less important projects, or
    • fired.
  • People at work are making negative comments about me and:
    • my (lack of) commitment to work,
    • my need to take time off, or
    • my modified duties …
  • My employer can’t do that… right?

We also get regular questions from our employer clients:

  • She went on maternity leave and we like her replacement better…
  • We were having issues with her performance before she said she was pregnant, and we were going to fire her…
  • We are going through a major restructuring and eliminating a bunch of positions including a pregnant woman’s position...
  • We can let her go… right?

There is so much misinformation and confusion about the rights of working pregnant women. The law is clear, being fired, laid off, denied opportunities or experiencing other negative treatment because you are pregnant is discrimination.

Treating an employee differently (negatively) because they are pregnant or are taking maternity or parental leave is discrimination. Pregnancy does not have to be the only reason or even the main reason for the differential treatment. If it is any part of the reason for the negative treatment, it is discrimination. But pregnancy does not excuse an employee from meeting performance expectations or insulate them from the effects of a company-wide restructuring. Whether there was discrimination is unique to each case.

The protections working pregnant women in BC have come from the BC Human Rights Code, the BC Employment Standards Act and case Law. The Human Rights Code says that:

a person must not refuse to employ or refuse to continue to employ a person, or discriminate against a person regarding employment or any term or condition of employment, because of the persons sex.

The Supreme Court of Canada held in Brooks v. Canada Safeway Ltd., [1989] 1 SCR 1219 that sex discrimination includes discrimination based on pregnancy.

The Employment Standards Act says that:

an employer must not, because of an employee’s pregnancy or leave terminate her employment or change a condition of her employment without her written consent. It also says that as soon as her leave ends, the employer must place her in the position she held before taking leave, or a comparable position.

If you are an expectant mom concerned about any of these issues, or an employer thinking about letting an expectant mom go (even for a good reason) you should consult with an employment/workplace human rights lawyer. These can be tricky issues to manage for soon-to-be/new parents and businesses.

For expectant moms, we can help you navigate this stressful situation, inform you of your rights and come up with a plan for you moving forward.  Plans are unique to each person and can include everything from helping educate your employer about its obligations to you, to helping you leave your workplace and get compensation.

For employers, we can help you understand your obligations and risks, and how to act in a manner that is consistent with the law and achieve your own best outcome.

This blog is not intended to serve as legal advice, and only provides general information. Every situation must be considered on its own facts.

Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].

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