Employers commonly seek our advice on issues related to maternity and parental leave. Here are some of our most frequently asked questions:
Q: Can I ask a candidate for employment whether or not they are pregnant, or whether they are planning on starting a family? I need to know to minimize disruption to my small business.
A: It is generally inadvisable to ask such questions. While it can be difficult to manage an employee’s maternity/parental leave, employers of all sizes are legally required to provide such a leave under employment standards legislation and to not discriminate against candidates for employment on the basis of sex, pregnancy or family status.
In some jurisdictions, human rights legislation specifically prohibits asking such questions. In British Columbia, while the Human Rights Code does not specifically prohibit this, a candidate who is asked such a question and then not selected for employment (for whatever reason) may make a complaint to the Human Rights Tribunal that they were discriminated against because of their answers. Additionally, it is likely not permissible under privacy law to ask such questions as there is no reasonable basis for asking.
Q: We have an employee who is starting her maternity leave and she has two weeks accrued unpaid vacation. Do we pay that amount out as a lump sum after her last active day at work, or do we push out her last day by two weeks and count that time period as vacation?
A: You can do either. We recommend asking the employee what her preference is and do that. It doesn’t make a difference in terms of her EI entitlement because her ROE will reflect the vacation pay and her start date for benefits will be adjusted accordingly by Service Canada.
Q: Is an employee’s vacation entitlement affected by a maternity/parental leave?
A: If the employer’s vacation policy or practice mirrors the minimum standards in employment standards legislation, then an employee on such a leave does not accrue vacation pay during their leave. When they return, they are entitled to vacation time as though they had not gone on leave, but their vacation pay will only be whatever they accrued in the prior year of entitlement. For example, if an employee in B.C. with ten years of service is on maternity/parental leave from January 1, 2022, to December 31, 2022, upon their return they will be entitled to three weeks’ unpaid vacation, but no vacation pay, for the year 2023. (This scenario assumes the employer uses a calendar year for determining vacation).
However, if the employer has made promises to the employee above the minimums of employment standards, then the employee may be entitled to vacation pay despite their leave. For instance, if the employee in the scenario above is subject to an employment agreement entitling them to “three weeks’ paid vacation per annum,” then the employee is likely entitled to three weeks’ paid vacation for 2023.
Q: We hired a replacement to cover an employee’s maternity leave, and the replacement is performing much better than the employee on leave. Can we dismiss the employee on leave when they try to return?
A: Employers have a statutory duty to an employee returning from a maternity or parental leave to place the employee in the position they held before taking leave, or in a comparable position. So while you can retain the new employee, if you have enough work for them, we do not recommend dismissing the returning employee.
Q: We are going through a downsizing and everyone in a certain department is unfortunately being let go. One person in that department is currently on parental leave. Can we dismiss him? Should we dismiss him at the same time as everyone else or wait until his leave has expired?
A: So long as the decision to dismiss this individual in no way relates to his parental leave or his status as a new parent, then yes you can dismiss him. However, it may be to your advantage to wait until he returns, depending on the circumstances. This type of termination is high-risk; we suggest seeking legal advice prior to proceeding.
Q: One of our employees is eight weeks pregnant and says she cannot attend work due to fear of contracting COVID-19. Do we have to allow her to work from home until she starts her maternity leave?
A: You should seek information from her doctor to determine whether this is a true medical need requiring reasonable accommodation on the basis of pregnancy or disability, or whether this is her personal preference. If her desire to not attend work is only a personal preference, then human rights are not engaged and you do not have to provide such accommodation.
Katy Allen is a partner in the Labour, Employment and Human Rights Group in Vancouver. Katy approaches legal issues with pragmatism and a focus on each client’s unique business needs. She advises and represents clients regarding a ...
Rob Sider, KC, is the head of the Labour, Employment and Human Rights Group at Lawson Lundell. His practice focuses on management-side labour and employment law. He advises on labour and employment aspects of commercial ...
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