Maternity Leave
Work and Family Provisions in Canadian Collective Agreements
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A. MATERNITY LEAVE
Maternity leave is now covered and protected in the labour/employment standards legislation of every Canadian jurisdiction, and in most collective agreements. It is designed to give expectant mothers the possibility of withdrawing from work in the later stages of their pregnancy and to allow them some time to recuperate after childbirth. Maternity leave clauses represent one of the key practices with respect to work and family balance.
Although they sometimes only reiterate basic legislated guarantees, maternity leave provisions in collective agreements often provide additional benefits. Typically, they indicate: the number of weeks (possibly including extensions) of leave of absence that can be taken and under what conditions; which employment benefits will be continued; how seniority will be calculated; and the procedure upon return to work. More generous agreements also provide income-replacement mechanisms to supplement employment insurance benefits and may include additional safeguards to ensure the employment of pregnant employees and new mothers is adequately protected.
Reference to Legislated Standards
In some cases, collective agreements simply affirm that the parties will adhere to minimum standards regarding maternity leave, as found in the appropriate federal or provincial/territorial labour legislation. Although this can be seen as merely the symbolic recognition of an existing right, adding such a clause in a collective agreement usually has the advantage, for unions, of making the issue subject to the grievance procedure. This can thus provide employees with a more expedient redress mechanism should management not adhere to legislative requirements, while also allowing a uniform application within a group. Below are some examples of contract language making reference to legislated standards.
| (04191) | The Company will grant pregnancy leave and/or parental leave, without pay, in accordance with the Employment Standards Act of Ontario... |
| (10214) | Maternity and parental leave : The provisions of Chapter II, Section 3), Subsection 3) of the Act respecting Labour Standards (R.S.Q., CN 1.1) apply mutatis mutandis. |
| (10705) | The provisions of the Act Respecting Labour Standards pertaining to maternity leave, parental leave and parental obligations shall apply to employees. [translation] |
Anti-Discrimination Clauses Related to Pregnancy and Maternity Leave
Although human rights legislation and case law in all Canadian jurisdictions offer some protection to pregnant employees and working mothers, a number of agreements include contract language that explicitly forbids discrimination and harassment against these employees, either as part of a general anti-discrimination provision or in a separate clause.
| (04489) | No employee shall be laid off, terminated or otherwise adversely affected in her employment because of pregnancy. |
| (01587) | The Company may not dismiss, demote or refuse to hire or promote an employee because of pregnancy or discriminate against her in any way. [translation] |
| (07811) | The Company shall not dismiss, suspend, layoff, demote nor discipline, nor deny promotion or training because the employee has applied for leave under these Clauses. |
| (10214) | No employee shall be laid off or be subject to discriminatory or disciplinary measures should he avail himself of special leave as granted under this Division. The employer must take him back in its employment on the first working day following the special leave granted under this Division, on the condition, however, that there is work in his trade, specialty or occupation on the job site in question. |
An interesting clause, in forbidding discriminatory treatment, allows a pregnant employee to refuse a leave of absence or a change in her job duties and working conditions.
| (01474) | ...no employee shall be required to take a leave of absence, nor shall an employee’s job duties or working conditions be altered without her consent because of pregnancy; nor shall there be any penalty for pregnancy. |
Eligibility and Notification Requirements
To be eligible for maternity leave, female employees must usually meet a number of requirements. Generally, they must provide advance notice in writing of the expected start date of their leave. This is in order to limit disruptions to the operations of an organization by giving an employer the opportunity to make arrangements to cover the absence of the employee. Some collective agreements nonetheless make it possible to waive this obligation where circumstances warrant.
In many cases, eligibility for a maternity leave is limited to those who have been in the service of their employer for a minimum period of time. A medical certificate attesting the employee’s condition may also be required. All of the above conditions reflect those normally appearing in labour legislation.
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Box 2.1 Legislative Requirements Regarding Eligibility for Maternity Leave 1 Legislation in all jurisdictions sets a number of qualifying conditions for maternity leave. Employees covered by the Canada Labour Code (federal jurisdiction) and most provincial/territorial labour legislation must have a minimum period of service with the same employer to be eligible. This ranges from 0 to 12 months: one year in the case of Alberta, Manitoba, the Northwest Territories, Nova Scotia, Nunavut, and the Yukon; 6 months in the federal jurisdiction; 20 weeks before the expected birth date in Newfoundland and Prince Edward Island; 20 weeks in the 52 weeks preceding the day the leave is to commence in Saskatchewan; and 13 weeks in Ontario. British Columbia and New Brunswick have no requirements with respect to length of service, and the only condition in Quebec is to be in the service of the employer the day preceding the notice of intent to take leave. All jurisdictions require employees to provide notice prior to the start date of the maternity leave. Most call for at least four weeks’ notice, although this is less in Quebec (3 weeks) and in Alberta, Newfoundland, Ontario and New Brunswick (2 weeks). However, in the latter case, pregnant employees must provide a notice of intent to take leave 4 months before the projected date of delivery. It should be noted that most jurisdictions allow this requirement to be waived under some circumstances, including premature childbirth. A requirement for employees to provide their employers with a medical certificate in order to qualify for a maternity leave appears in all jurisdictions. However, in the case of Alberta, British Columbia, the Northwest Territories, Nova Scotia and Nunavut, this is only required if requested by the employer. In Quebec, a medical certificate may be replaced by a written report signed by a midwife.2 |
| (08783) | An employee who makes application for leave at least one (1) month in advance of the requested commencement date, except where unavoidable circumstances prevent such notice, and provides the immediate Supervisor with a medical certificate or adoption order certifying that the employee is pregnant or about to adopt and specifying the expected date of confinement or adoption is entitled to and shall be granted maternity, paternity or adoption leave without pay. |
| (00913) | A female employee who has completed six (6) consecutive months of employment with the Company who submits an application in writing for maternity leave at least four (4) weeks prior to the date specified by her in her application as the date on which she wishes to commence such leave and who provides the Company with a certificate of a duly qualified physician certifying that she is pregnant and specifying the estimated date of delivery shall be granted a maternity leave of absence without pay... |
| (02135) | The employee must notify the Company of her intention to proceed on maternity leave, in writing, at least three (3) weeks prior to the commencement of such leave. This notice must be accompanied by a medical certificate attesting to the state of the pregnancy and the expected date of birth. The period of notice may be less than three (3) weeks in cases of emergency substantiated by a medical certificate. |
Start/End Dates
Most maternity leave clauses include language regarding the selection of the start and termination dates of the leave of absence. These essentially specify who is to make the decision and/or set specific time frames within which the leave can be taken.
Decision at the employee’s discretion
In some cases, the pregnant employee can choose at her discretion when she wishes to begin and end her maternity leave.
| (04494) | The splitting of maternity leave before and after the birth shall be at the employee’s discretion and the day of the birth shall be included. [translation] |
| (03749) | The Corporation shall allow the employee concerned complete freedom to decide on the splitting of maternity leave before and after the birth. [translation] |
Decision by mutual agreement
In other instances, the decision must be made by mutual agreement between the employee and her supervisor or manager.
| (08570) | The commencement and termination dates of an employee’s Maternity Leave shall be a matter of mutual agreement between the employee and the Supervisor. |
Preset dates
A number of collective agreements also delimit a more or less strict time period within which a maternity leave must start and end. As some of the examples below illustrate, the boundaries are often determined by the length of the leave, and may mirror legislated standards.
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Box 2.2 Minimum/Maximum Start and End Dates in Labour Legislation With the exception of the Yukon, all Canadian jurisdictions have established limits concerning the start date of a maternity leave. Usually, labour standards legislation stipulates that a maternity leave is not to commence earlier than a given number of weeks before the expected date of birth. This number can range from 11 to 17 weeks, the latter representing the maximum length of a standard maternity leave in most jurisdictions.
In some instances (federal, Manitoba, Newfoundland, Nova Scotia, Ontario), a limit of seventeen weeks after birth is also set as the end date of the leave.3 |
| (06720) | Pregnancy leave shall be granted for up to seventeen (17) weeks and may begin no earlier than seventeen (17) weeks before the expected birth date. |
| (01576) | [A pregnant] employee is entitled to and shall be granted a leave of absence from employment of up to seventeen (17) weeks, which leave may commence not earlier than eleven (11) weeks prior to the estimated date of her confinement and end not later than seventeen (17) weeks following the actual day of her confinement. |
| (00139) | Pregnancy leave shall commence between the second and the fourth month prior to the anticipated date of birth of the child and shall terminate at the latest six (6) months after the birth... |
| (04499) | [Maternity] leave shall not normally commence more than eleven (11) weeks prior to the expected date of delivery, but in any case no later than the actual date of delivery. |
Even though the starting date of the leave may be preset in a collective agreement, additional clauses are sometimes negotiated to offer a measure of flexibility in dealing with individual cases. Conversely, the establishment of a fixed start and end date can be designed as an alternative solution should no agreement be reached between an employee and her employer.
| (04060) | the Corporation may:
(i) defer the commencement of maternity leave of any female employee for any period approved in writing by a qualified medical practitioner or a person approved by the Deputy Minister of National Health; (ii) allow leave to an employee to commence earlier than eleven (11) weeks before the expected termination of her pregnancy. |
| (04605) | The Employer and the teacher may enter into a mutual agreement concerning the duration of the maternity leave; however, in the event that mutual consent cannot be reached, maternity leave shall commence six (6) weeks prior to the date of confinement or earlier upon production of a medical certificate stating when confinement will probably occur and that in the opinion of the medical doctor the teacher should no longer be working. In the absence of mutual agreement, maternity leave shall terminate not less than twenty-one (21) weeks following the date of confinement or within six (6) months of the date of confinement upon production of a medical certificate that the employee cannot continue her duties before any date within the six (6) month period. |
Employer right to require the start of a leave
Finally, some clauses give employers the right to oblige an employee to take her maternity leave at a given time and for a minimum duration, under certain circumstances. Notwithstanding operational considerations, this may be deemed important by employers who wish to minimize any legal liability should there be any complications related to an employee’s pregnancy. This issue is dealt with in more detail in the last section of this chapter.
| (04489) | The Commission may require an employee to commence a leave of absence at the time at which the duties of her position cannot reasonably be performed by a pregnant woman or the performance of the employee’s work is materially affected by the pregnancy. |
The same agreement also stipulates that an employee may not work for a set period of time following her delivery.
| [A]n employee shall not work and the Commission shall not cause or permit an employee to work for at least six weeks after the date of delivery unless in the written opinion of a legally qualified medical practitioner chosen by the employee a shorter period is sufficient. |
Length of Maternity Leave
Initial leave
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Box 2.3 Length of Regular Maternity Leave in Labour Legislation The employment standards legislation of all Canadian jurisdictions provides for a minimum period of unpaid maternity leave for eligible pregnant employees. This period is 18 weeks in Alberta, British Columbia,4 Quebec and Saskatchewan and 17 weeks in all other jurisdictions. This leave can usually be supplemented by adding a period of parental leave. In some jurisdictions, it is also possible to obtain an extended maternity leave, as will be discussed hereafter.5 |
While some collective agreements merely adhere to minimum labour standards, many others provide a longer period of leave, as shown in the following chart.
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Information concerning the duration of a maternity leave may be part of provisions pertaining to the start and termination dates of the leave, as can be seen in earlier examples. However, it is often found as a separate subclause.
| (00193) | A female employee may apply in writing and shall be granted a maternity Leave of Absence to a maximum of twenty-four (24) consecutive weeks (or less as may be requested by the employee) or in accordance with the Employment Standards Act, whichever is greater. |
| (03749) | The Corporation shall grant a pregnant employee maternity leave for a period of twenty (20) consecutive weeks. [translation] |
Despite the fact that maternity leave is intended for female employees, an interesting clause allows fathers to take maternity leave in grave circumstances.
| (07324) | In the event the birth mother dies or is totally disabled, an employee who is the father of the child shall be entitled to both maternity and parental leave without pay. |
Extended maternity leave
An additional period of maternity leave may sometimes be granted, in case of medical complications following childbirth, or if the actual date of birth is later than expected.
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Box 2.4 Legislative Provisions Regarding Extended Maternity Leave Extensions to maternity leave are provided in the labour standards legislation of most Canadian provinces and territories. Seven jurisdictions guarantee at least six weeks of postnatal leave6. Although unconditional in Alberta and British Columbia, this minimum period of leave in Ontario and Newfoundland legislation applies only to employees who are not taking parental leave. In the case of Prince Edward Island and Saskatchewan, only employees giving birth later than the expected date of delivery are eligible. As regards the Yukon, the six-week minimum period pertains solely to employees with pregnancy-related health problems. Besides the above jurisdictions, Nova Scotia provides a minimum of one week of leave after childbirth. Five jurisdictions - Alberta, Manitoba, the Northwest Territories, Nunavut, Quebec - provide for an extension of maternity leave should the actual date of delivery occur after the estimated date of delivery. This extension is equivalent to the period of time between the two dates. In the case of the N.W.T. and Nunavut, this is limited to a maximum of 6 weeks. In Quebec, this extension is only available to employees who have less than two weeks of regular maternity leave remaining after delivery. In Alberta, Quebec, British Columbia and Saskatchewan, it is also possible to extend a maternity leave by up to six weeks (three in Alberta) should the medical condition of the mother or child prevent the employee from returning to work.7 |
An extended leave is often granted once the initial period of maternity and/or parental leave has expired. Notice that in the first example below, a male employee may also be eligible for an extended maternity leave. The actual duration of the extended leave can vary considerably, depending on the agreement and the exact wording of a clause.
| (04494) | Leave without pay for a maximum of two years shall be granted to a female employee as an extension of maternity leave or to a male employee whose spouse was not granted an extension of maternity leave. [translation] |
| (04635) | A leave of absence without salary shall be granted for a maximum duration of two (2) years to an employee to extend her maternity leave, to an employee to extend his paternity leave and to extend his/her ten (10)-week leave for adoption. |
| (04760) | Extended Parental Leave may be granted at the discretion of the Board to an employee who has been on Pregnancy, Parental or Adoption Leave. Subject to operational requirements, requests for Extended Parental Leave will not be unreasonably denied. The total period of Pregnancy, Parental, Adoption and Extended Parental Leave shall not exceed thirty-six (36) months. |
| (07324) | An employee shall be entitled to extend the maternity leave by up to an additional six (6) consecutive weeks’ leave without pay where a physician certifies the employee is unable to return to work for medical reasons related to the birth. |
| (04306) | In special circumstances, the leave may be extended if mutually agreed between the Company and the employee. |
A leave can also be extended, at times, by using vacation credits.
| (10206) | With respect to maternity leave or parental leave, the employee may take vacation immediately before or after such leave. [translation] |
Considering the health risks associated with a pregnancy, and the potential complications following childbirth, it may be necessary for some employees to rely on their sick leave credits to extend their maternity leave.
| (04326) | Accumulated paid sick leave and/or group insurance benefits required because of a disabling medical condition directly attributable to pregnancy, shall be granted to qualified employees under the same conditions as these benefits are granted to other disabled employees who qualify under the terms of the Plan(s). |
| (07324) | (d)(1) An employee on maternity leave or parental leave shall not be entitled to sick leave during the period of leave. (2) Notwithstanding paragraph (d)(1), an employee on maternity leave or parental leave who pursuant to paragraph (b)(5) and who subsequently suffers any illness or disability which prevents them from returning to work as scheduled, whether or not such illness or disability is related to pregnancy, shall be entitled to sick leave benefits commencing on the first day on which the employee would otherwise have returned to work. |
| (08783) | In the event of medical complications arising out of pregnancy such that the employee is unable to return to work at the expiry of an approved leave of absence, the employee will receive payment of normal salary from accumulated sick leave credits... |
Interrupted leave
There may be situations where an employee would prefer to temporarily interrupt her maternity leave and return to work. For instance, this can be the case when a newborn child must remain hospitalized for an extended period of time. Provisions allowing a non-continuous leave therefore offer mothers more flexibility as well as the opportunity to spend more time caring for their baby at home.
| (10160) | Where the employee’s newborn child is born prematurely, or is born with or contracts a condition that requires hospitalization within the period defined in (I) above and the employee returns to work during all or part of any periods during which her newborn child is hospitalized, she may resume her maternity leave without pay when the child’s hospitalization has ended and remain on maternity leave to the extent provided in (I) above. |
| (04635) | When she has sufficiently recovered from her delivery and her child must remain in the hospital, the employee may interrupt her maternity leave by returning to work.
The employee whose child is hospitalized within the fifteen (15) days of his birth shall also have this right. The leave may only be interrupted once. It is completed when the child is brought home. |
Maternity Benefits (Allowance)
One of the key concerns of many unions when bargaining maternity-related benefits is to eliminate or at least attenuate any adverse financial impact on pregnant employees when they take a leave of absence. A means to achieve this is to negotiate maternity allowances to replace lost earnings.
The most common income-replacement mechanisms appearing in collective agreements are supplementary unemployment benefit (SUB) plans. These essentially provide an employer-paid subsidy to top up Employment Insurance (EI) maternity benefits. Sometimes, employees not eligible for EI benefits may also receive an allowance during their leave of absence.
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Box 2.5 Employment Insurance: Maternity Benefits EI maternity benefits are payable to the natural mother in the period surrounding the birth of a child, and may start from eight weeks before the expected date of birth to the week of actual delivery. Fifteen (15) weeks of maternity benefits are allowed after a two-week waiting period and can be collected within 17 weeks of the actual week of confinement or week of expected confinement, whichever is later. However, the 17-week limit can be extended and payments delayed for every week a baby is confined to the hospital, for up to 52 weeks following the week of the child's birth. It may also be possible to receive sickness benefits in addition to the maximum weeks of maternity benefits should an employee be unable to work because of complications due to pregnancy or childbirth or by reason of an unrelated illness. Benefits usually cover 55% of a claimant’s weekly insurable earnings, to a maximum of $413 per week. There are nonetheless exceptions: claimants who are in a low-income family with a net annual income of less than $25,921 and who are receiving the Child Tax Benefit (CTB) can receive a higher benefit rate (family supplement).8 To be eligible, an employee must have worked a minimum of 700 hours in the previous 52 weeks or since the start of her last claim. It should be noted that EI legislation has been amended and that requirements will be reduced to 600 hours as of December 31, 2000. Further changes include the possibility of retaining some work attachment while receiving benefits, thereby allowing parents to earn the greater of $50 or 25% of their weekly benefits, without penalty. Supplemental insurance benefits for employees on a maternity (or parental) leave provided by employers do not affect EI benefits, as long as the combined income of the benefit and supplement do not exceed 100% of an employee’s normal weekly salary.9 |
Terms and conditions
The receipt of SUB benefits is subject to a number of conditions. Normally, employees must have a minimum amount of service and provide adequate notice to qualify. An additional requirement appearing frequently is that employees commit to return to work for the employer for a minimum period of time after their maternity/parental leave. In many cases, employees must also prove that they are eligible for EI benefits. Access to SUB benefits may be restricted to regular full-time employees.
| (00668) | All regular employees who are eligible for Employment Insurance benefits are eligible to receive top up benefits if they have been a regular employee for at least twelve consecutive months to the date of the commencement of the leave. |
| (02135) | Maternity leave allowance will only be paid to those employees who have continuous service of thirteen (13) weeks or more. |
| (06747) | In order to receive this allowance, the employee must provide to the Employer proof that the employee has applied for and is eligible to receive employment insurance benefits pursuant to the Employment Insurance Act. An employee disentitled or disqualified from receiving employment insurance benefits is not eligible for maternity leave allowance. |
| (06384) | An employee who has been granted maternity leave without pay shall be paid a maternity allowance in accordance with the terms of the Supplemental Unemployment Benefit (SUB) Plan described in sub-clause 19.07(B) provided that she:
(1) has completed six (6) months of continuous employment before the commencement of her maternity leave without pay; (2) provides the Council with proof that she has applied for and is in receipt of Employment Insurance (EI) pregnancy benefits pursuant to section 22 of the Employment Insurance Act in respect of insurable employment with the Council; and (3) has signed an agreement with the Council stating that:
(4) For the purpose of sub-clause 19.07(A) (3) (b), periods of leave with pay shall count as time worked. |
| (01474) | For each pregnancy maternity benefits shall be paid as follows:
(i) Where the employee is eligible for UIC maternity benefits and (1) provides the Company with proof that she has applied for and is eligible for UIC maternity benefits and (2) signs an agreement as follows: I, agree that I will return to work at the end of my maternity leave and will remain an employee of the Company for at least six (6) months after my return to work. If I fail to do so I acknowledge my indebtedness to the Company for the amount received from the Company as maternity allowance. (…) No employee is eligible for the benefits (...) until she has been employed for twelve (12) months by the Company. |
| (04600) | Plan B [the SUB Plan] does not apply to temporary, casual or part-time employees or employees subject to lay-off. |
Amount and duration of maternity benefits
The amount and duration of benefits can be highly variable, depending on the agreement. Normally, SUB plans cover the difference between EI benefits and a set percentage of an employee’s weekly earnings. The income replacement rate is usually less than 100%. It is assumed that a 93% income replacement rate through EI and SUB benefits provides take-home pay equivalent to a full salary, because of tax and other advantages10. Note that contract language may specify a fixed duration of benefits, or have it pegged to the period of EI benefits. In the latter case, there will likely be financial repercussions for employers in light of the federal government’s recent decision to extend EI parental benefits to 35 weeks.
| (06674) | Maternity allowance payments made in accordance with the SUB Plan will consist of the following: (…)
(ii) for each week that the employee receives a pregnancy benefit pursuant to Section 22 of the Employment Insurance Act , the difference between the gross weekly amount of the EI benefit she is eligible to receive and ninety-three per cent (93%) of her weekly rate of pay less any other monies earned during this period which may result in a decrease in EI benefits to which she would have been eligible if no extra monies had been earned during this period. |
| (06747) | Pursuant to the Supplemental Employment Benefit (SUB) Plan, the maternity leave allowance will consist of:
(i) Two weeks at 85% of the employee’s basic pay; (ii) 15 additional weekly payments, equivalent to the difference between the employment insurance gross benefits and any other earnings received by the employee and 85% of the employee’s basic pay. |
| (08783) | a) ...for the first two (2) weeks an employee shall receive her weekly rate of pay; b) for up to a maximum of fifteen (15) additional weeks, payments equivalent to the difference between the Unemployment Insurance benefits the employee is eligible to receive and her weekly rate of pay; c) all other time as may be provided under this Article shall be on a leave without pay basis... |
| (03750) | The Corporation shall pay the employee on maternity leave:
i) for each of the two (2) weeks of the waiting period required under the unemployment insurance plan, an allowance in the amount of 95% of her basic weekly rate of pay; ii) for each of the fifteen (15) weeks for which she receives unemployment insurance benefits, a top-up allowance equal to the difference between 95% of her basic weekly rate of pay and the unemployment insurance benefits that she is receiving or is entitled to receive; iii) for each of the three (3) subsequent weeks of her maternity leave, an allowance equal to 95% of her basic weekly rate of pay until the end of the twentieth (20th) week of maternity leave. |
| (04498) | [SUB] payments [will be] equivalent to the difference between the sum of the weekly employment insurance benefits the employee is eligible to receive and any other earnings received by the employee, and ninety-three percent (93%) of the actual weekly rate for her classification which she was receiving on the last day worked prior to the commencement of the pregnancy leave, including any retroactive salary adjustment to which she may become entitled. |
As can be seen in the previous examples, a number of collective agreements also stipulate that the employer will provide employees on maternity leave with an allowance to offset the two-week waiting period for EI benefits. Such a provision is usually included as part of a more comprehensive SUB plan, but it may be a stand-alone clause. Notice, in the last example below, that part of the benefit is paid upon return to work. This might have been designed as an incentive to encourage pregnant employees to resume their employment.
| (04770) | For Pregnancy leave, the Board shall compensate the teacher through an Employment Insurance Commission approved Supplemental Unemployment Benefit plan, for the two-week waiting period, equal to the Employment Insurance Commission benefit that would be payable to the teacher during each week of the benefit period. |
| (01922) | During the first two (2) weeks of maternity leave an employee shall receive a supplementary employee benefit (SUB) based on ninety-five (95) percent of the weekly wage rate up to the UIC max subject to approval of the Unemployment Insurance Commission. |
| (09925) | Employees eligible for the leave with pay will receive ninety-five percent (95%) of pay at their actual rate of pay (including any retroactive pay increases) for the two (2) weeks of Maternity/Adoption Leave coinciding with the EI waiting period after the employee submits proof that she has applied and qualified for EI benefits. The normal deductions from pay for the two (2) week period shall be made.
The employees, on their first payroll deposit after returning to work, will receive five percent (5%) of the salary they were earning prior to the Maternity/Adoption Leave, for a two (2) week period. |
In some instances, SUB plans offer eligible employees a fixed amount per week, irrespective of their salary level.
| (04760) | A Teacher on Pregnancy Leave who applies for and is in receipt of E.I. benefits will be eligible under the terms of the SUB plan, to receive $75.00 per week for the next fifteen (15) weeks. |
Although relatively rare, some agreements provide an allowance for employees who do not qualify for EI benefits. However, the amount paid in these cases tends to be less, and/or for a shorter duration, than for employees eligible for EI.
| (04059) | An employee who is not entitled to receive Employment Insurance benefits shall receive an allowance equivalent to two (2) weeks Employment Insurance benefits based on the amount she would have received if she had been entitled to Employment Insurance benefits from Human Resources Development Canada. |
| (10206) | A full-time or part-time employee who is not entitled to unemployment insurance but who has accumulated twenty weeks of service shall also be entitled to receive the maternity allowance, but for a period of ten (10) weeks. [translation] |
Although much less common, it is also possible for unions and employers to negotiate mechanisms not related to EI to provide employees with an additional income during a maternity leave. This may be done by allowing the use of sick leave credits or by providing fully paid days off.
| (08783) | An employee on maternity leave may access her sick leave credits for the health-related portion of the maternity leave as determined by medical documentation provided by her doctor. The Employer will pay its usual share of benefit premiums on behalf of the employee during her health-related absence, in the same way the Employer pays benefit premiums for an employee in receipt of sick leave credits. Employees who do not have enough sick leave credits to provide this benefit will be advanced sick leave credits to a maximum of fifteen (15) days. |
| (04619) | In case of pregnancy, a teacher shall be entitled to thirty (30) teaching days leave at full pay which said days shall not be deducted from her accumulated sick leave. |
Benefits and Seniority Protection
Both seniority retention/accrual and the preservation of benefits for employees on maternity leave are important issues to be addressed in the context of collective bargaining.
Seniority retention and accrual
An important issue for many employees is what will happen to their seniority ranking should they take a relatively lengthy leave of absence. This can be of particular concern to women, who tend on average to interrupt their employment more often and for longer periods than men, because of childbirth and the preponderant role they have traditionally played in the care of children. Seniority can have a significant impact on an employee’s job security and working conditions - for example, in terms of shift selection, access to training, promotions—especially in industries subject to cyclical variations in workforce levels. Although the issue of seniority is addressed in the labour legislation of a majority of jurisdictions, it still remains a consequential bargaining issue.
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Box 2.6 Legislative Provisions Regarding Seniority Protection and Accrual Labour standards legislation in four jurisdictions stipulates that an employee’s seniority is to accrue during a maternity, parental or adoption leave: federal, Ontario, Saskatchewan and New Brunswick11. Four other jurisdictions - Prince Edward Island, Nova Scotia, Nunavut and the Northwest Territories - allow employees to maintain their previous seniority when they return to work12. |
The chart below shows the evolution of the frequency of seniority retention and accrual clauses in major collective agreements. Note that although a majority of agreements in 1998 still did not include any provision on seniority leave and maternity, there is a small but noticeable shift from provisions providing only seniority retention to those that offer at least partial seniority accumulation, which would tend to be preferable for employees on leave.
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From the perspective of employees taking a maternity or parental leave, the better provisions are those affording a continued accumulation of seniority and length of service during the leave. Nonetheless, as the first example illustrates, a number of agreements simply allow seniority to be retained, rather than accrued.
| (04489) | Where an employee reports for work upon the expiration of the period [of maternity leave], the Commission shall permit her to resume work with no loss of seniority or benefits accrued to the commencement of the maternity leave. |
| (04306) | Seniority will accumulate during the maternity leave of absence. |
| (01193) | Seniority shall continue to accrue during maternity leave. [translation] |
| (01474) | An employee returning from leave shall be reinstated in her job with full credit toward severance pay accrual, experience rating, and other length of service benefits. |
Preservation of benefits
The possibility of maintaining work-related benefits such as health and dental plans, life insurance and pension contributions can be crucial for the well-being and long-term financial security of employees taking maternity leave.
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Box 2.7 Legislative Provisions Regarding Benefits During Leave Labour standards legislation in several Canadian jurisdictions allows employees to maintain a number of benefits - normally including pension, life insurance, accidental death, medical and dental plans - during their maternity (and parental) leave, although this is usually contingent on the payment of their share of premiums. Such is the case in British Columbia, Manitoba, Ontario, Quebec and Saskatchewan, as well as for employees covered by the Canada Labour Code (federal jurisdiction). Furthermore, vacation entitlements continue to accrue in British Columbia and, in Quebec, a reduction in annual vacation due to a maternity leave must be compensated by an indemnity. In Nova Scotia’s Labour Standards Code, an employee may maintain benefit plans in which she participated prior to her leave as long as she enters an arrangement with the employer to pay both the employer’s and the employee’s cost13. |
Maternity and parental leave clauses in collective agreements often deal with the issue of benefits. Although some specify that employees on maternity leave are no longer eligible for certain benefits, a number of others offer more generous conditions.
| (00193) | The period of such leave shall be considered as Company service for seniority and pension purposes and vacation entitlement (but not vacation pay) only.
The Company will continue to provide medical, extended health, dental and optical plan and group insurance benefits during the period of leave and the Company shall continue to make payment to the plan in the same manner as if the employee were not absent where: (a) The Company pays the total cost of the plan, or (b) The employees elects to continue to pay her share of the cost of a plan that is paid for jointly by the Company and the leave. Basic Sick Leave benefits will not be available during the leave. |
| (01922) | The Company will continue at no expense to the employee, Life Insurance, Drug Insurance, Dental, Extended Health, Semi-private Hospital and Ambulance Insurance Plans for the duration of an approved maternity leave. |
| (01894) | During the course of these leaves of absence, the employee on leave retains his benefits as if at work. However, during parental leave, the employee must either continue to contribute to the Retirement Plan in order to maintain benefits or request leave from the Plan. |
| (00736) | While on maternity leave, the employee shall continue to accumulate seniority, annual leave, pension and any other benefits under the agreement as if she were at work. [translation] |
| (08570) | Vacation entitlement will accumulate during Maternity Leave provided the employee returns to work at the expiry of the approved leave. (...) During the Maternity Leave, the Corporation will continue to pay the premiums for coverage of the Corporation’s Group Insurance Benefits Program. |
| (04494) | During maternity leave and the extensions provided for in clause 9:07:09, the employee shall be entitled to the following benefits, provided she was normally entitled to such benefits:
a) health and life insurance, provided she pays her share of premiums; b) accumulation of vacation leave credits; c) accumulation of sick leave... [translation] |
| (07324) | MSP, Dental, EHB, and Group Life Insurance benefits shall continue uninterrupted during the period of time the employee is on maternity and/or parental leave provided that the employee makes arrangements prior to commencing the leave to pay their share of the benefit premiums for that period where the premiums are cost-shared. Where an employee makes arrangements to continue benefits coverage all benefits named in this paragraph shall continue.
Pension contributions will cease during the period of the leave unless the employee makes arrangements prior to commencing the leave to pay the contributions pursuant to the provisions of the Pension (Municipal) Act. |
Notification of job vacancies, promotions and training opportunities
Although these are not benefits per se, employees on maternity or parental leave may wish to be informed about work-related opportunities, such as vacancies, promotions and training opportunities. Indeed, this is a right guaranteed in the labour standards legislation of some Canadian jurisdictions.
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Box 2.8 Legislative Provisions Regarding Notification of Job Opportunities The Canada Labour Code, covering employers and employees in sectors under federal jurisdiction, stipulates that an employee is entitled, upon written request, to be informed of all employment, promotion and training opportunities that arise during the maternity or parental leave14. |
A number of clauses in collective agreements stipulate that employees on leave are to be notified about opportunities in their workplace.
| (07811) | The Company must inform in writing, every employee who takes leave under these Clauses 19.09 [Maternity Leave], 19.10 [Child Care Leave], 19.11[Adoption Leave] and 19.12 [Parental Leave] of every employment bid, promotion or training opportunity for which the employee is qualified. The employee must request this in writing. |
| (04278) | Employees on vacation, maternity or adoption leave during the posting for a new position, vacancy or promotion shall be notified provided the employee provides the Company with a valid point of contact. If an employee is on maternity or adoption leave at the time of the selection for the position, the job shall be filled temporarily until the successful applicant returns to work. |
| (04137) | An application from an employee on maternity leave for a vacant position shall be given the same consideration as if she were at work, provided the Employer can carry out a full assessment of the application. If the employee is selected, the position shall be filled in accordance with the provisions of clause 9.11 until the employee’s return. [translation] |
Return to Work (Job Protection)
An underlying assumption in contract language is that a pregnant employee availing herself of a maternity leave will resume her employment afterwards.
An employee’s return to work, however, may entail some logistical difficulties, particularly if conditions are changing in the workplace. From an employer’s perspective, it is therefore preferable to be notified about the return date in advance so that appropriate arrangements can be made. Employers may also wish to ensure that an employee, particularly if she takes only a very brief post-delivery leave, is capable of working without endangering her health.
From the perspective of unions, the main preoccupation is usually to ensure that employees who take a maternity, adoption and/or parental leave will not be adversely affected with respect to their employment status, including their salary and benefits, and that they will be able to return to their position.
Notification
A requirement in some maternity leave clauses is that employees provide notice prior to the end of their leave of absence, in cases where the date of return has not been predetermined.
| (04306) | The employee (...) will be required to give the Company at least two (2) weeks notice of her desire to return to work following [maternity] leave. |
| (00130) | An employee who returns to work after maternity leave shall inform the Company at least three (3) weeks in advance of her intention to return to work....An employee who fails to return to work on the expiry date of her maternity leave shall cease to be employed by the Company. [translation] |
| (00716) | An employee who does not provide written notice to the contrary, shall be deemed to be returning at the expiration of the maximum allowed under maternity and parental leave. |
Medical certificate
A medical certificate stating that an employee is capable of returning to work without any risks to her health is often a contract requirement.
| (04499) | An employee wishing to resume employment on expiration of maternity leave (...) shall provide the Commission with a certificate from a duly qualified medical practitioner certifying that resumption of employment by her at that time will not, in his opinion, endanger her health. |
| (00130) | The employee shall also provide the Company with a medical certificate stating that she can resume her regular work. [translation] |
Right to reinstatement after leave
Historically, the right to return to their job has been one of the key concerns of employees taking a leave of absence related to the birth or adoption of a child. This explains in part why employment standards legislation in every Canadian jurisdiction now includes provisions pertaining to this issue.
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Box 2.9 Legislative Provisions Regarding the Reinstatement of Employees Following A Maternity Leave Every Canadian jurisdiction requires employers to reinstate employees who have taken a maternity leave to their former position or to a comparable one with equivalent wages and benefits. In the latter case, federal jurisdiction employers must in addition offer a position in the same location. Employees covered by Quebec’s Act Respecting Labour Standards must be reinstated in the same position at the end of their maternity leave or of a parental leave not exceeding 12 weeks. They may be reassigned to a comparable position after a parental leave of greater than 12 weeks' duration. In British Columbia, Nunavut, the Northwest Territories, the Yukon, Ontario, Prince Edward Island and Quebec, employees are to receive any wage rate or benefit increases to which they would have been entitled had they remained at work during the leave period. Moreover, eight jurisdictions (Alberta, British Columbia, the Northwest Territories, Nunavut, Nova Scotia, Ontario, the Yukon) provide that if an employer suspends or discontinues operations during an employee’s maternity leave, the employee is to be reinstated upon resumption of operations. In Alberta, this requirement only extends for 12 months after the end of the leave. In Nova Scotia, Ontario and the Yukon, reinstatement is to proceed in accordance with the existing seniority system or practice. Although Quebec’s legislation does not specifically mention a suspension of operations, it stipulates that an employee who would have been laid off had she not been on maternity leave shall keep, with respect to rehiring, the same rights as the employees who were laid off. Employees under federal jurisdiction must be notified as soon as possible if a reorganization affects their wages and benefits during their maternity or parental leave. |
Most collective agreements with maternity and/or parental leave clauses have contract language that basically reflects legislative requirements.
| (00193) | On her return to work the Company shall reinstate the employee to her previous position, or should her former position be redundant, provide her with alternate work at not less than her job group at the time her leave of absence began. |
| (08570) | Upon return to work, the employee will be reinstated in her former position and will receive any new increased salary rate or step that would affect her classification rate. |
| (09751) | Upon her return to work after maternity leave, the employee shall return to the position she held at the time of her departure and recover the benefits to which she would have been entitled if she had remained at work. If the employee’s position no longer exists upon her return, the Company shall grant her all the rights and privileges to which she would have been entitled at the time her position was abolished if she had remained at work. [translation] |
| (01474) | An employee returning from leave shall be reinstated in her job at the salary she would have received had her employment with the company been continuous. |
Agreements may specify that, where a position has been abolished or changed following a reorganization, an employee will be able to exercise her seniority to displace a junior employee. However, this may not always be very beneficial for employees returning from a maternity leave, who generally tend to be younger and, consequently, to have relatively few years of service.
| (00245) | [The] company will reinstate the employee in their former job if the former job is still in existence and unchanged in content provided the employee is still qualified to perform the work. If the job has been abolished or its content substantially changed, the employee may displace the junior employee in a job grade which equal to or below their former job grade or the junior employee in a job previously held and for which they are qualified. |
Where an employee’s position has disappeared, an employee may be assigned a comparable position, as some of the examples above indicate. The definition of what is a comparable position may vary according to contract language and how it has been interpreted by arbitrators. In the example below, from the Canadian Airlines and IAMAW agreement (federal jurisdiction), a definition is provided which includes the "same location," reflecting a requirement of the Canada Labour Code. Nevertheless, such contract language, in the absence of legislative provisions, could be quite important for workers employed by companies operating in many different locations, who may prefer not to be relocated because of family and community ties or for other personal reasons.
| (07811) | Every employee who takes [maternity, child care, parental, or adoption] leave (...) is entitled to be reinstated in the position that employee occupied when the leave commenced. If for a valid reason the Company cannot reinstate an employee in that position the Company shall reinstate the employee in a comparable position with not less than the same wages, benefits, and same location... |
Additional protection against layoffs
Some collective agreements provide additional protection against layoffs for employees on maternity (or adoption/parental) leave. In at least one instance, these employees have a form of "super-seniority," giving them more job protection than more senior employees.
| (07811) | No employee can be laid off while on leave under these Clauses (...) However, this shall not prevent the Company from laying off active employees who are senior to him/her during his/her leave of absence under this Clause. |
Another interesting provision, while not giving complete job protection, allows laid-off employees who have exhausted their EI entitlements during a recent maternity leave to receive some financial compensation equivalent to the EI benefits they would have received.
| (01904) | If an employee returns from an approved maternity leave and is laid off before she has been able to restore all the weeks of UIC entitlements she used during such leave, the Company will pay such employee an amount equal to the UIC maximum weekly benefit for each week during such layoff in which the employee does not receive UIC benefit for reason only that she has used up weeks of entitlement during the maternity leave and has not had an opportunity to restore them. The Company’s obligation under this paragraph will not exceed fifteen (15) weeks. During such weeks, regular UIC premiums will be paid. |
Special arrangements following return to work
Specific clauses are sometimes negotiated by unions and employers to facilitate the reintegration of employees at work following their leave of absence. As the examples below demonstrate, this can be done by such means as giving returning employees priority in the scheduling of their work or exemption from certain requirements.
| (05243) | Upon request, the professor shall be released from her courses during the session(s) affected by her maternity leave...
In the two years following maternity, paternity or adoption leave, the professor shall be given priority in setting his or her teaching schedule. [translation] |
| (06676) | An employee returning from maternity leave may be exempt from standby and callback until the child is one (1) year old provided that other qualified employees in her area are available. |
The return to work may also be phased in, allowing an employee to initially work on a part-time basis through a partial leaveA class="indice" HREF="#note15">15.
| (09723) | An employee who does not take such leave [maternity] without pay shall be entitled to partial leave without pay, which may be spread over the same period of two (2) consecutive years...
A part-time employee is also entitled to such partial leave without pay... When the employee takes partial leave without pay under this clause, she or he shall work a minimum of fourteen (14) hours a week and the employee’s choice of work schedule shall be approved by the employer. The employer shall consider any family obligations indicated by the employee where applicable. [translation] |
Interrupted Pregnancies / Stillbirth
Although rather rare, some clauses in collective agreements deal with the issue of interrupted pregnancies, both voluntary and involuntary. Two types of provisions have been identified: those pertaining to miscarriages (sometimes including abortions) and those regarding stillbirths.
A period of leave may be necessary for an employee, both to recuperate physically and to deal with the emotional stress suffered in these circumstances.
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Box 2.10 Legislative Provisions Regarding Miscarriages and Stillbirths In Quebec, employees who have a natural or provoked miscarriage more than 20 weeks before the expected date of delivery have the right to an unpaid three-week leave. Employees have the right to an unpaid five-week leave of absence following a stillbirth, should it occur at most 20 weeks prior to the expected date of delivery. |
Miscarriage
A miscarriage is a fetal death occurring in the earlier stages of a pregnancy, usually in the first half of the gestation period.
| (09906) | When a natural or legally induced miscarriage occurs prior to the beginning of the twentieth (20th) week preceding the expected date of delivery, the employee shall be entitled to maternity leave without pay not exceeding three (3) weeks. [translation] |
| (03749) | The Corporation shall grant leave to the employee concerned, upon submission of a medical certificate indicating the duration, when the pregnancy is interrupted before the beginning of the twentieth (20th) week preceding the expected date of delivery. During such special leave, the employee shall be entitled to use sick leave credits or receive wage-loss insurance benefits, provided she was normally entitled to receive such leave or benefits. [translation] |
| (04306) | In the event of a miscarriage, the leave of absence will terminate six (6) weeks from the date of the miscarriage. |
Stillborn child
A stillbirth refers to a fetal death in the later stages of a pregnancy. Longer periods of leave than for a miscarriage are usually afforded in such a case, owing to the greater physical health risks that it entails for the mother.
| (09906) | If the employee’s child is stillborn after the beginning of the twentieth (20th) week preceding the expected date of delivery, the employee’s maternity leave without pay shall end five (5) weeks after the date of the stillbirth at the latest. |
| (10370) | An employee whose child is stillborn after the beginning of the twentieth (20th) week preceding the expected date of delivery shall also be entitled to such maternity leave. [translation] |
| (03749) | The Corporation shall grant five (5) weeks’ leave to an employee whose child is stillborn in the twenty (20) weeks preceding the expected date of delivery. During such leave, the employee shall receive an allowance equal to ninety-five percent (95%) of her basic weekly rate of pay... [translation] |
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1 Information provided by Labour Law Analysis, Strategic Policy and International Labour Affairs, Labour Program (HRDC). Information as of May 2000. resume
2 Source: Labour Law Analysis (Labour Program, HRDC), Family-Related and Other Leaves (May 2000), http://labour-travail.hrdc-drhc.gc.ca/policy/leg/pdf/family_e.pdf resume
3 Source: Labour Law Analysis (Labour Program, HRDC), Family-Related and Other Leaves, op. cit. resume
4 Changes to B.C.’s labour legislation will reduce the length of maternity leave to 17 weeks, while increasing the period of parental leave to 35 weeks, effective December 31, 2000. resume
5 Source: Labour Law Analysis, Family-Related and Other Leaves, op. cit. resume
6 In many instances, the period of leave may be shortened at the request of the employee. resume
7 Source: Labour Law Analysis, Family-Related and Other Leaves, op. cit. resume
8 Further changes to EI eligibility rules are expected by December 31, 2000. resume
9 Source: Insurance Program (HRDC), Maternity, Parental and Sickness Benefits (2000/05/29), http://www.hrdc-drhc.gc.ca/insur/claimant/201017.shtml resume
10 No Canada Pension Plan and Employment Insurance deductions are assessed on EI and SUB benefits. resume
11 However, in New Brunswick, seniority does not accrue when the employee would have been dismissed, suspended or laid off. resume
12 Source: Labour Law Analysis, Family-Related and Other Leaves, op. cit resume
13 Source: Labour Law Analysis, Family-Related and Other Leaves, op. cit resume
14 Source: Labour Law Analysis, Family-Related and Other Leaves, op. cit resume
15 More details on partial leave and preferential shift selections can be found in the first chapter of this study. resume