Nurturing Your Workforce: Tips for Employers re Pregnant Employees and Parental Leaves

Apr 22 2024

While pregnancy, maternity and parental leaves can be disruptive for workplaces, how these are handled can also make or break an employment relationship. Babies are a fact of life and the reality is having them disproportionately impacts women employees, not only in relation to their bodies and potential needs during pregnancy but also once the child is born. Below we outline legal obligations and provide tips for employers to support their employees and maintain a strong relationship during pregnancy and parental leaves.

1. foster a Supportive Environment

Unfortunately, it remains fairly common for employees to be terminated or treated negatively after they are showing or have notified their employer that they are pregnant. While this is illegal, it doesn’t change the real fear women may have in disclosing that they are either trying to start a family or are pregnant.

It is also common for women to feel immense guilt when advising their employer that they are pregnant. When they share this momentous, personal news, employers should do their best to make the conversation entirely about the employee and not about the impact on the employer. The fact that an employee may feel guilty is actually a sign that they care a lot about their role and the organization. The correct response is happiness and support.

2. Know your Legal Obligations

Employment Standards Act

In BC, new parents are entitled to take time off when they have a baby or they adopt a child. The Employment Standards Act (“ESA”) sets out the minimum amounts of time that most workers are entitled to, while employees may also have a contract or benefits that provide for additional entitlements. There are some professions, such as lawyers, engineers, insurance agents and realtors who are excluded from the ESA while typically employers do permit for the same time off in relation to maternity and parental leave.

In accordance with the ESA, employees are entitled to a minimum of the following:

Maternity Leave: pregnant workers are entitled to 17 weeks, without pay, to have their child.
Parental Leave: if a pregnant worker took the 17 weeks maternity leave than they are entitled to up to an additional 61 consecutive weeks of parental leave immediately following. Parents who did not take the maternity leave are entitled to up to 62 consecutive weeks of parental leave within 78 weeks of the child’s birth or within 78 weeks of the child’s adoption.

While an employee is on maternity or parental leave, their job is protected and their seniority and benefits (like vacation time) continues to accrue. This means the employee is entitled to return to a substantially similar position upon the completion of their leave. In practical terms, this would typically be defined as similar hours, rate of pay, job title and overarching core functions.

Human Rights Code

BC employers also need to be mindful of their obligations under section 13 of the BC Human Rights Code, which protects employees from discrimination against a person regarding any term or condition of employment on the basis of personal characteristics, including marital status, family status, sex and gender identity or expression. Similar legislation applies to federal employers through the Canada Human Rights Code.

An example of where human rights may be engaged is if an employee was initially hired for an opening shift where they started at 7am. They are a single parent and only able to get their child into a day care that opens at 8am and have requested an accommodation to change their shift to starting at 8:30am upon their return from parental leave. Employers generally have a duty to accommodate to the point of undue hardship, while it may be that they accommodate in a different way than the employee requests.

Entitlement to Notice

Employees or prospective employees have no obligation to tell their employer or prospective employer that they are pregnant until at least four weeks before their expected date of taking the maternity and/or parental leave. It is possible to specify an additional amount of time as required for notice in an employee’s contract or in the employer’s workplace policies..

Employers may request a doctor’s note to confirm entitlement to maternity and/or parental leave.

Generally, an employee should indicate at least a month in advance whether they intend on taking a total of 12 months or 18 months of leave as they have to make a declaration for the purposes of Employment Insurance benefits (it changes the amount of the payments if extended over a longer period of time). That said, it is not uncommon for an employee to initially plan on 12 months but change their mind (typically due to inability to access appropriate childcare); this should be communicated as soon as reasonably practical and no later than 4 weeks prior to their anticipated return date.

That said, if an employee fails to provide sufficient notice the employer cannot simply dock their pay or terminate them. If you are wanting to consider options as the business incurred damages as a result, then you will want to get legal advice.

3. Open Communication and flexibility

It is a good idea to do what you can to maintain open communication channels with any pregnant employees. Every woman is impacted different by pregnancy, from hormonal changes that could affect mood to mobility challenges and “Pregnancy Brain”. Employees are responsible for continuing to be productive and contributing to their workplace while being paid, however it may be that they need reduced hours at some point or some extended grace and flexibility during this time. Small gestures in putting priority on an employee’s well-being could go a long way in creating loyalty long-term. Employers should also be careful to maintain confidentiality such that it is up to the expecting employee what personal details are shared with colleagues.

4. Plan for Coverage

Typically this consists of cross-training existing staff, redistributing responsibilities and/or hiring temporary replacements. Employees can be hired for a “fixed term” of 12 or 18 months such that the employer has no further obligations after this time, but there are potential pitfalls for employers in using this type of agreement (including if the employee is terminated they can be owed wages for the balance of the contract period) so generally it would be recommended to hire the employee per usual and simply let them go “without cause” if there is not enough work once the pregnant employee returns from leave. To preserve relationships, it is a good idea to be open and honest with the temporary employee from the outset while it can be challenging to find individuals to fill roles where the potential for future opportunities may be limited.

Sometimes we hear from employers who prefer the person they brought in to do the job temporarily, however as noted above the employee on maternity or parental leave has job protection and your legal obligations to that person continue. If you are considering terminating an employee after they have advised you that they are pregnant or because they are no longer needed during or after their leave, it is important to get legal advice as this is a red flag for a potential human rights complaint.

5. Maintain Connection During Leave

Stay connected with employees on maternity leave with occasional check-ins or updates on relevant workplace developments. Respect their privacy and boundaries while expressing your support and willingness to touch base and in particular to ease their minds about any concerns they may have about returning to work. It is a good idea to include employees on maternity or parental leave in invitations for team events. Even if they are not able to come with a new born, it is a reminder that you are thinking of them. If you don’t hear back, don’t be discouraged as they may just be overwhelmed and sleep-deprived!

If the employee is comfortable with it, sharing updates about how they are doing can also be helpful in maintaining their connection with the greater team.

6. Facilitate a Smooth Return to Work

Prepare for the return to work with transition plans and providing necessary updates or training to reintegrate into their role. Consider offering flexible scheduling or adjusting schedules keeping in mind new childcare obligations. Recognize that even if your employee is excited to return to work, they will need time to adjust and again may need a little bit of extra grace.

Conclusion

By prioritizing the well-being and needs of pregnant employees and those on parental leave, employers in BC can foster a positive work environment that promotes loyalty, productivity and employee satisfaction. The above tips will help ensure employers not only fulfil their legal obligations but contributes to a more inclusive society that recognizes the important role women play in the workforce and in fostering life.