On November 27, 2017, the Fair Workplaces, Better Jobs Act officially became law, and a number of changes were integrated into Canada’s Employment Standards Act (ESA). This includes new rules regarding pregnancy and parental leave.
As per Ontario’s Employment Standards Act, pregnant employees have the right to take pregnancy leave of up to 17 weeks of unpaid time off work, before the child is born or comes into their care. The employer does not have to pay them during this time. Once the baby is born or first comes into their care, birth mothers who took pregnancy leave are entitled to 61 weeks leave, while birth mothers who did not take pregnancy leave, as well as all other new parents, are entitled to 63 weeks parental leave. Pregnancy leave and parental leave are not the same thing; therefore, an employee has rights to both. Also, employees on leave have the right to benefit plans and are to continue to earn credit toward length of employment and seniority during their time off.
An employer cannot discriminate against an employee because of their eligibility to take either leave, or for planning to take either leave. According to the Canadian Human Rights Commission: Policy on Pregnancy & Human Rights in the Workplace, “Women in the workplace are valued employees entitled to equality, dignity, respect and accommodation of their needs when they are attempting to become pregnant, while they are pregnant, and as they return to work following a pregnancy-related absence.” Actions like refusing to hire or promote, differential treatment in employment, termination of employment and failure to provide reasonable accommodation are all prohibited by the Act. Employers also need to be aware of the rights of pregnant employees, as well as new fathers and mothers. This may include things like flexible working requests (in case of doctors’ appointments and such), holiday entitlement, and not penalizing them for increased bathroom breaks. Also, a birth father may need flexibility regarding pregnancy in certain cases, such as taking their partner to an appointment – such needs are to be accommodated as well.
When the excitement of baby news is over, it is concerning as an employer when you realize all that needs to be taken care of in an employee’s absence. For a majority of companies, especially smaller businesses, there’s no denying that parental leave can be a nightmare. The extended leave is great for new moms, but from the perspective of the company, it puts the burden on the employer for that much longer. However, there is no need to quietly panic. Pause for a moment, start with “congratulations!”, and then go into how you can both best cope with the shift. Working together with the expecting mom or dad, an employer can come up with several ways to make the transition as smooth as possible. The biggest mistake is delaying the process and not taking advantage of the time you have to start planning for an employee’s absence.
As with everything, communication is vital to the process: have ongoing one-on-one discussions with employees to learn about their plans for leaving and returning to work, as well as to figure out how to best fill the role while they are away. Essential information about their role should be written down and handed over to whomever is filling their position. It would be ideal for the recruit to come in a few days before your employee takes leave, to shadow them. Also, be careful not to leave expecting parents out of company plans in the months leading up to their leave.
It can be difficult and costly to find and train new staff. Fortunately, there will always be contract workers, temps, and freelancers available. When recruiting a temporary replacement, provide a clear description of the job and specify expectations. Start looking right away so you don’t rush the process and end up hiring someone incompetent or unqualified, then be forced to start over again. Choose someone you think will integrate quickly and provide support and training where necessary.
If you are expecting other staff members to take on the responsibilities of the employee on leave, include them in the decisions instead of just piling extra tasks on them, to avoid creating resentment. Staying in touch with the employee on leave is also important. It’s helpful for them to receive an occasional bulletin or email bringing them up to speed on what’s happening while they’re away.
Don’t expect an employee coming back from parental leave to get right back into it on the first day. There will probably have been significant changes in your company since they’ve been away. Allow them time to integrate back into the workplace. There’s no simple solution to this issue. All parties need to communicate and work together to create a flexible and efficient workplace and transition during the process.
Helen Jacob | Staff Writer