5 - Maternity-Related Reassignment and Leave, Maternity Leave and Parental Leave

Part III of the Canada Labour Code (Labour Standards)

The Canada Labour Code provides for maternity-related reassignment and leave, maternity leave, and parental leave.

The following questions and answers will be of interest to employers and employees under federal jurisdiction. Pamphlet 1 of this series describes the types of businesses covered by the Code. It is available from any Labour Program office of Human Resources and Skills Development Canada and on the HRSDC website.

1.  What is meant by “maternity-related reassignment” and “job modification”?

An employee who is pregnant or nursing may request that the employer modify her job functions or reassign her to another job if continuing any of her current job functions may pose a risk to her health or that of her fœtus or nursing child. This request must be accompanied by a certificate from a qualified medical practitioner indicating how long the risk is likely to last and what activities or conditions should be avoided in order to eliminate the risk.

2.  What is the employer’s obligation in such a case?

An employer must examine the request in consultation with the employee and, where reasonably practicable, modify the employee’s job functions or reassign her.

An employee who has made a request for a reassignment or job modification is entitled to leave with pay while the employer is examining her request and until the employer modifies her job function, reassigns her or informs her that it is not reasonably practicable to modify her job functions or reassign her.

Where a reassignment or a job modification is not reasonably practicable, an employee may take an unpaid leave of absence for the duration of the risk as indicated in the medical certificate.

An employee who is pregnant or nursing is entitled to an unpaid leave of absence during the period from the beginning of the pregnancy to the end of the twenty-fourth week following the birth, if she provides the employer with a certificate of a medical practitioner of her choice indicating that she is unable to work by reason of the pregnancy or nursing and indicating the duration of that inability.

For further details, please refer to Division VII of Part III of the Canada Labour Code.

3.  Can the employer require a pregnant or nursing employee to continue to work in a hazardous environment until the employee produces a medical certificate?

Part II of the Canada Labour Code (Occupational Health and Safety) enables the pregnant or nursing employee to cease to perform her job if she feels there is a risk to her health or that of the fœtus or child, until a medical certificate can be obtained.

For further details, please refer to Pamphlet 5, Pregnant and Nursing Employees, of the Information on Occupational Health and Safety series.

4.  Who is entitled to maternity leave?

Female employees, including managers and professionals, who have completed six consecutive months of continuous employment with the same employer when their leave begins.

5.  Who is entitled to parental leave?

Natural or adoptive parents, including managers and professionals, who have completed six consecutive months of continuous employment with their employer at the time their leave begins.

6.  By six months of continuous employment, do you mean an employee must not have been absent from work during six months to be eligible for leave?

No. Absences that are not terminations of the employer-employee relationship do not interrupt continuity of employment.

7.  How much leave is provided for under the Code?

The Code provides for up to 17 weeks of maternity leave. In addition, an employee who assumes actual care of a newborn or newly adopted child is entitled to parental leave of up to 37 weeks. However, the total duration of the maternity and the parental leaves must not exceed 52 weeks.

8.  Can both parents take parental leave?

Yes. If they both work for an employer falling under the jurisdiction of the Code, the two parents are entitled to combined parental leave of up to 37 weeks. Parents have the option of taking their parental leave at the same time, or one after the other, as long as the total combined parental leave does not exceed 37 weeks. Also, the 52 week combined maternity and parental leave limitation stated in the answer to question 7 above applies.

9.  Must both parents work for the same employer to combine parental leave?

No. Provided the employers are under the jurisdiction of Part III of the Code, even if they are two separate employers, the two employees must combine their parental leave.

10.  Can an employee take both maternity and parental leave?

Yes. However, an employee may only take one period of time for each leave. For example, an employee wishing to take parental leave must do so in one block of continuous time, and not interspersed with periods of work.

11.  When can leave be taken?

The 17 week maternity leave may be taken any time during the period that begins 11 weeks before the expected date of delivery and ends 17 weeks after the actual delivery date.

Parental leave may be taken any time during the 52 week period starting the day the child is born or the day the child comes into the employee’s care.

12.  What must an employee do to obtain leave?

An employee must give the employer written notice at least four weeks before beginning either maternity or parental leave. The notice must advise the employer of the intended length of leave.

For maternity leave, the employee must also provide the employer with a certificate from a qualified medical practitioner confirming that she is pregnant.

13.  Must an employee have completed six months of continuous employment before applying for leave?

No. An employee may apply prior to having completed six months of employment, but leave cannot begin until six months of employment are completed.

14.  Can an employer compel an employee to take maternity leave?

No. A pregnant employee cannot be required to take leave unless her employer can show that she is unable to perform an essential function of her job.

15.  What happens to the employee’s job upon return from maternity leave or parental leave?

The employee must be reinstated in her or his former position, or be given a comparable position in the same location and with the same wages and benefits.

16.  Could an employee ever receive lower pay upon returning to work?

Yes. If, during a leave period, the wages and benefits of a group of employees are reduced as part of a reorganization plan, an employee who is reinstated in that group will receive no more than the wages and benefits she or he would have received if she or he had been at work during the reorganization. Likewise, if wages and benefits for the employee’s group are increased during leave, the employee would be entitled to the increases upon return to work.

17.  Do pension, health and disability benefits and the seniority of the employee accumulate during leave?

Yes. These benefits continue during the leave period provided an employee pays any contributions she or he would normally have paid. Likewise, the accumulation of seniority continues during the absence.

18.  What if an employee chooses not to pay normal contributions related to pension, health and disability benefits for the leave period?

Non-payment of contributions for the leave period has no impact on the employee’s employment status. These benefits may lapse during the leave period, but employment upon reinstatement is considered to be continuous with employment before the leave, for purposes of calculating future benefits.

19.  Is the employer required to continue its contributions to the pension, health and disability benefits plan while the employee is on leave?

Yes. The employer must pay at least the same share of contributions as if the employee were not on leave, unless the employee does not pay her or his contributions.

20.  Is an employee on leave entitled to receive information about opportunities for training and promotion?

Yes. On the written request of the employee, employers must inform employees who are away on leave of every employment, training opportunities or promotion that arise during the period of leave.

21.  Can an employer dismiss or lay off an employee because she is pregnant or has applied for or intends to apply for maternity, maternity-related reassignment or leave or parental leave?

No. An employer may not dismiss, suspend, lay off, demote or discipline an employee because she is pregnant or has applied for or intends to apply for maternity or parental leave, maternity-related reassignment or leave or modification of her job functions. An employer cannot take pregnancy into account in any decision to promote or train an employee.

22.  When a collective agreement does not provide for maternity or parental leave, is the employer still obliged to grant it?

Yes, provided the employee meets the requirements of the Code.

This publication is provided for information only. For interpretation and application purposes, please refer to Part III of the Canada Labour Code (Labour Standards), the Canada Labour Standards Regulations, and relevant amendments.

You can order additional copies of this publication, indicating the departmental catalogue number LT-173-01-06, from:

Enquiries Centre
Human Resources and
Skills Development Canada
140 Promenade du Portage
Phase IV, Level 0
Gatineau, Quebec
K1A 0J9

E-mail:  publications@hrsdc-rhdcc.gc.ca
Fax:  (819) 953-7260
http://www.hrsdc.gc.ca

©Her Majesty the Queen in Right of Canada, 2006

Cat. No.:  HS23-2/5-2005
ISBN:  0-662-69526-7

Printed in Canada