A Woman’s Legal Rights to Maternity Leave and BenefitsSep 28 2017
Between provincial legislation and federal benefits, new parents should be able take time off if required to give birth or care for a newborn or newly-adopted child without fear of discrimination. The BC Employment Standards Act and federal Employment Insurance benefits (EI) provide the following:
- A pregnant employee may take unpaid maternity leave for up to 17 consecutive weeks beginning no earlier than 11 weeks before the child’s expected birth date. EI maternity benefits will pay for 15 of those weeks beginning as early as eight weeks before the expected birth date (if applied and qualified for).
- New mothers are entitled to extend the maternity leave by six additional weeks if unable to return to work for reasons related to the birth of a child or termination of a pregnancy, which would not be paid through EI maternity benefits.
- Employers must also provide unpaid leave of up to 35 weeks to birth mothers after the baby is born and 37 weeks for fathers or adopting parents. An additional 35 weeks are covered through EI parental benefits and can be shared between two parents if they apply and qualify. These benefits must be paid out within 52 weeks of the child being born or the week the child was placed for adoption.
- Employers must either hold the employee’s job open or have a job of equal or better pay waiting for the employee upon her return to work.
The basic EI rate for benefits is 55 percent of average insurable earnings up to a maximum of $543 per week. New parents may extend the coverage to 18 months through EI parental benefits with permission from his or her employer, however it is then paid at 33 percent of average insurable earnings with a maximum of $362 per week.
Throughout any phase of a job, an employer is not permitted to discriminate against a mother, a mother-to-be or a woman who may be planning a family. This includes during the application and interview stage, while the employee is pregnant and working, during the maternity or other pregnancy-related leave and upon return to work.
The Application and Interview
An employer may not make a decision based on the family status of a woman nor may the employer create a job advertisement that excludes mothers, soon-to-be mothers or women planning a family. This includes job selection as well as job promotion for existing employees.
Interview questions that probe whether a woman is planning on having children, is currently pregnant or has children are not permitted. However, an employer may legally ask a parent if he or she is able to work the hours needed to complete the job.
While Pregnant or upon Return to Work
Maternity leave cannot be forced on a mother-to-be and must be solely at her or her doctor’s discretion. An employer also cannot end an employment contract early due to pregnancy or family-related duties. As outlined above, pregnant employees are entitled to certain leaves; they are also entitled to sick leave as with any other employee.
All training and promotional opportunities should be made available to all female employees, regardless of their family status. During restructuring, jobs held by women with or planning families should not be targeted for elimination.
Employers in BC have an obligation under the Human Rights Code to accommodate an employee’s childcare obligations where a workplace policy, rule or standard imposes a serious interference with a significant parental or other family duty.
Accommodations that may be reasonable for a mother or expectant mother include flex-time, the ability to change or share shifts, lighter duties if requested, time off for pregnancy-related appointments or children’s medical appointments, maternity leave, leave after the baby is born, a private place to breastfeed or to express milk and extra time for these duties.
Discrimination due to pregnancy or parenthood is a form of discrimination based on sex and family status. If you feel that your employer has discriminated against you because of your pregnancy or because of your children, contact RDM Lawyers to set up a consultation.
- Planning for Maternity and Parental Leave – HealthyFamilies BC
- Policy on Pregnancy & Human Rights in the Workplace – The Canadian Human Rights Commission
- Employment Insurance maternity and parental benefits – Government of Canada
- Federal Budget 2017: how to plan for changes to parental employment insurance benefits – DLA Piper
- Leaves and Jury Duty – Employment Standards Act