Employment laws in Canada allow new parents and expectant mothers job-protected, unpaid time off work to spend with their newest family member(s). There are two types of leave, pregnancy leave (aka maternity leave) and parental leave. So what are the differences between them and how do they work? Read this guide to know the ins and outs of maternity and parental leaves, your rights, protections and potential benefits available with each.

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Maternity and Parental Leave in Ontario

The rules for both pregnancy and parental leave for most workers in Ontario are contained in the Employment Standards Act (ESA). Maternity leave is legally referred to as pregnancy leave in the ESA.

Employers and workers who are federally regulated, such as airline, bank and postal employees, are subject to the maternity and parental leave rules in the Canada Labour Code, although the amount of leave and rules are similar.

There are also rules regarding maternity and parental leave benefits available through Employment Insurance (EI). The rules come from the Employment Insurance Act, but the EI website walks you through the application process. You can get a quick overview of EI maternity and parental benefits below, but first, here’s a closer look at pregnancy/maternity leave in Ontario.

Pregnancy/Maternity Leave vs Parental Leave in Ontario

Pregnant workers whose employment is covered by the ESA and who started working with their current employers at least 13 weeks before their expected due date are eligible for a minimum pregnancy leave of up to 17 weeks of unpaid, job-protected time off work. The pregnancy leave can be extended if the employee is still pregnant after the 17 weeks’ leave expires, but that extension ends when the child is born.

Full-time, part-time, permanent or term contract employees are all eligible for maternity leave, and they do not have to be working for the entirety of the 13 weeks. In other words, an employee who goes on sick leave after their employment begins is still eligible for maternity leave as long as her due date is at least 13 weeks after her first day on the job.

Once an employee begins her pregnancy leave, she must use it all at once. As soon as she returns to work, her maternity leave ends and she forfeits any time off she didn’t use.

When Can You Go on Pregnancy Leave?

The earliest a maternity leave can begin is 17 weeks before the due date unless the baby arrives earlier, in which case the leave begins on the date of the birth.

The latest a pregnancy leave can begin is on the baby’s due date. However, if the baby is born earlier than the due date, the leave begins the day the baby is born.

Other than those rules, an employee can decide to start her pregnancy leave any time within the 17 weeks, including the birth date. An employer can not pressure an employee to take pregnancy leave, even if the employee falls ill or her pregnancy affects the type of work she can do.

An employer has a duty to accommodate a pregnant employee. Contact an employment lawyer in Toronto if your employer pressures you about when to take leave or how much to take.

Giving Notice To Your Employer Before Going on Maternity Leave

An employee must give her employer at least two weeks’ written notice before the date she intends to begin her pregnancy leave. She must also provide a certificate from a healthcare practitioner stating the baby’s due date if requested by the employer.

If you experience illness or complications due to the pregnancy and have to stop working, you can use sick leave and do not have to start pregnancy leave until either the due date or birth date, whichever is earlier. However, you have two weeks from when you stopped working to provide your employer with written notice of when your pregnancy leave will or did begin. Your employer can ask for a signed medical certificate stating that you could not perform your work duties because of the illness or complication.

If you decide to change the start date of your maternity leave, you must provide your employer with new written notice at least two weeks before the new date. You are still entitled to pregnancy leave, even if you fail to give your employer proper notice.

An employee is not required to notify her employer of when she plans to return to work. If the employer does not hear from the employee, they can assume she is taking the full 17 weeks, unless she’s entitled to an extension.

If you decide to end your maternity leave early, you must give your employer written notice four weeks before the date you wish to return.

Your employer can not ask you to return early or for a medical certificate clearing you for work. The decision to return to work is yours alone.

If you want to return later than your original return date, you need to give your employer four weeks’ notice before the original date the leave was to end.

Maternity Leave vs Parental Leave – What are the Differences?

Unlike pregnancy leave, any new parent in employment covered by the ESA can take parental leave as long as their employment began at least 13 weeks before the leave.

Under the ESA, a parent can be:

• A birth parent.
• An adoptive parent – even if the adoption has not been finalized.
• A person in a relationship of some permanence with a parent and who plans on treating the child as their own, including same-sex couples.

 A birth mother who took pregnancy leave is also entitled to parental leave. It usually begins immediately following the end of the maternity leave. However, if, for example, the baby needs to be hospitalized after the birth, the mother can choose to return to work and start her parental leave within 78 weeks of her baby being returned to her. Birth mothers who take maternity leave are entitled up to 61 weeks of parental leave.

All other parents are allowed up to 63 weeks of leave, including birth mothers who did not take pregnancy leave. They must begin their parental leave no later than 78 weeks after their baby was born or the date they first received care, custody and control of the child.

Both parents can take their parental leave at the same time and each is entitled to the full leave.

Maternity Leave vs Parental Leave – What are the Similarities?

Obligations

Parental leave requirements are the same as they are for maternity leave – you must notify your employer at least two weeks before you start your parental leave and four weeks before you return if you are not taking 63 weeks. You do not need to notify your employer if you take the full parental leave.

If an employee on pregnancy or parental leave decides to resign from their job, they must give their employer four weeks’ notice unless the terms in their employment contract state otherwise.

Rights

Parents on pregnancy and parental leave have a right to reinstatement. This means that when you return from leave, you have a right to the same job or a comparable job as the one you had before you left. You also have a right to the same rate of pay, plus any wage increases you would have earned while on leave.

The exception is if the employer terminates the employee for reasons completely unrelated to the leave, such as mass layoffs. However, if your employment is terminated for any reason before taking leave, while on leave or after returning from leave, contact us right away. If the leave had even the slightest influence on the decision to dismiss you, this is a severe violation of your rights.

Other rights employees on pregnancy and parental leave enjoy include:

• The right to be free from penalty for taking or asking about leave they are entitled to.
• Continuation of benefits such as pension plans, insurance, dental, etc., if they choose.
• Continuing accrual of the length of your service with your employer. This is especially important because it can affect:
  • Your severance package years down the road. Check out our severance pay calculator for a ballpark figure of how much notice or pay you could be entitled to in lieu of notice.
  • How your vacation time and pay are calculated.

Visit our Parental Leave in Ontario FAQ page for more answers to common questions about parental leave in Ontario.

EI Maternity and Parental Leave Benefits

Pregnancy and parental leave are unpaid unless your employer provides benefits through a maternity and parental leave policy. However, if you qualify, you can receive 55% of your earnings up to a weekly maximum of $638 through EI’s maternity and parental benefits programs.

Parental benefits can be shared between co-parents to give you more than an individual claimant is allowed. You can also choose to extend the time you receive benefits by taking less money. The chart below is from the EI’s “What these Benefits Offer” page and summarizes the program. Check it to ensure you have the latest numbers.

As a birth mother, you can receive parental benefits following your maternity benefits. EI encourages you to apply for both at the same time.

Don’t forget to read our sick leave in Ontario post for information on combining different types of leave (like maternity and sick leave.) You will also find information on applying for EI sickness benefits if your employer doesn’t offer paid sick leave and you need time off work for illness or complications related to the pregnancy.