Preparing for, and returning from, a maternity leave can be a stressful, confusing and an uncertain time.
Although it seems like a complicated time, moms should be reassured that any job-protected leave, such as pregnancy and maternity leave, is covered by the Employment Standards Act, 2000 (the “ESA”) and the Ontario Human Rights Code in Ontario for non-unionized employees.
The most important thing to remember is that an employee returning from a maternity leave is entitled to her own job back, and if that job is no longer available (due to a reorganization, etc), then the employee returning from the maternity leave is entitled to a comparable position within the organization with similar compensation, benefits, etc.
Another key point that many employees are not aware of is that an employee’s dental and health benefits (if provided), seniority and vacation all accrue during the maternity leave time period. So, for most purposes, an employee is viewed as an employee during her/his maternity leave for seniority/benefit/vacation accruals, etc. For instance, if all employees are granted a salary increase, the employee on maternity leave should also be eligible for the same salary increase. That said, regard must be had to the employment agreement, if any, that the employee signed upon hire – that contract may change certain terms with respect to a number of issues, but the employment contract can never contain terms that are less than the minimum standards as set out in the ESA. For instance, an employee on maternity leave may not be eligible for a performance-based bonus while on maternity leave.
Returning from maternity leave also brings up a host of other issues such as the right of the mother to be accommodated in terms of nursing and related maternal issues. It is important that the new mom returning from maternity leave speak with human resources and/or their direct report if no human resources department exists well in advance of the return date. For example, if the mother is still nursing, the employer should provide a locked office in which the mother can pump breast milk as needed. Because pregnancy and family status (I.e. having children) are protected under the Human Rights Code (Ontario), the employer has an obligation to accommodate the employee returning from maternity leave up to the point of undue hardship (this legal test of undue hardship is beyond the scope of this article, but suffice it to say that the employer has a burden to prove that any accommodation made for the returning employee is practically impossible).
Another hot topic for moms returning from maternity leave is sick days. No employer is required to provide paid sick days to employees, but if it does, sometimes companies will allow sick days to be used for days when the baby/child is ill and is unable to attend his or her regular day care. Working with human resources regarding these expectations is important.
The most important thing for new moms to do is to review their original employment agreement and the company’s policies and procedure manual to assess exactly what the company proposes to do while the mom is on maternity leave and what will occur upon the return after maternity leave. In addition, as mentioned above, the employee should contact the employer well before the end of her maternity leave to discuss re-integration.
This blog is not intended to, and does not provide, legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, the best course is to contact a lawyer.
The author, Karie Ann Benham, is a lawyer practising exclusively in the areas of labour, employment and human rights law and civil litigation. If you need legal assistance, please contact her at email@example.com and/or 647 515 9974.
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