本文发表在 rolia.net 枫下论坛Pregnancy and Parental LeavePregnant employees have the right to take Pregnancy Leave of up to 17 weeks of unpaid time off work. In some cases the leave may be longer.

Both new parents have the right to take Parental Leave -- unpaid time off work. Birth mothers who took pregnancy leave are entitled to up to 35 weeks' leave. Employees who didn't take pregnancy leave are entitled to up to 37 weeks' leave.

Parental leave isn't part of pregnancy leave. A birth mother can take both pregnancy and parental leave.

Both parents can be on leave at the same time. For example, a father can take parental leave at the same time the mother is on pregnancy or parental leave.

Employees are entitled to pregnancy and parental leave regardless of the type of employment relationship they have - full-time or part-time, permanent or contract.

An employer can't penalize an employee in any way because the employee is or will be eligible to take a pregnancy or parental leave, or for taking or planning to take a pregnancy or parental leave.

In most cases, employees must be given their old job back at the end of their pregnancy or parental leave.

Ontario's ESA and the federal Employment Insurance Act
Pregnancy leave and parental leave under the ESA are different from maternity benefits and parental benefits under the federal Employment Insurance Act. The rules about the timing and length of pregnancy and parental leaves under the ESA are very different from the rules about timing and length of leaves as they relate to benefits under the federal Employment Insurance Act.

You should contact your nearest federal government Human Resource Development Canada centre for information about employment insurance benefits.

Pregnancy Leave
Pregnancy Leave
Pregnant employees have the right to take pregnancy leave: up to 17 weeks of unpaid time off work. (In some cases the leave may be longer.)


An employer isn't required to pay an employee who is on pregnancy leave.

Qualifying for Pregnancy Leave
A pregnant employee is entitled to pregnancy leave if she was hired at least 13 weeks before the date her baby is expected to be born (sometimes called the "due date").

Note that an employee doesn't have to actively work for 13 weeks to be eligible for pregnancy leave. It's only necessary for there to be 13 weeks between her date of hire and her due date.

Here are some examples.

A typical case
Tegan was hired 15 weeks before her due date. She is eligible to begin her pregnancy leave at any time after being hired, because there are at least 13 weeks between the date she was hired and her due date.

When an employee is off sick
Fatima was hired 15 weeks before her due date. Soon after starting her new job, she was off sick for five weeks. Fatima is eligible for pregnancy leave because there are at least 13 weeks between the date she was hired and her due date. The fact that she didn't actually work 13 weeks is irrelevant.

When a baby is premature
Meredith was hired 15 weeks before her due date. However, 11 weeks after she was hired, her baby was born. Meredith is eligible for pregnancy leave to begin on the date the baby was born, because there were at least 13 weeks between the date she was hired and her due date. The fact that her baby was born less than 13 weeks after she was hired is irrelevant.

When a Pregnancy Leave Can Begin
Usually, the earliest a pregnancy leave can begin is 17 weeks before the employee's due date. However, if an employee has a live birth more than 17 weeks before the due date, she will be able to begin her pregnancy leave on the date of the birth.

Ordinarily, 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 latest the leave can begin is the day the baby is born.

Within these restrictions, an employee can start her pregnancy leave any time she chooses. The employer can't decide when the employee will begin her leave -- even if the employee is sick or if her pregnancy limits the type of work she can do.

Length of a Pregnancy Leave
A pregnancy leave can last a maximum of 17 weeks for most employees. An employee may decide to take a shorter leave if she wishes.

However, once an employee has started her pregnancy leave, she must take it all at once. She can't use up part of the 17 weeks, return to work and then go back on pregnancy leave for the unused portion. If she returns to work for the employer from whom she took the leave, even if it is only part-time, under the ESA she gives up the right to take the rest of her leave.

Miscarriages and Stillbirths
If an employee has a miscarriage or stillbirth, she is eligible for pregnancy leave only if the miscarriage or stillbirth occurred within 17 weeks before the due date.

The pregnancy leave of an employee who has a miscarriage or stillbirth ends on the date that is the later of:

17 weeks after the leave began;
OR

six weeks after the stillbirth or miscarriage.
This means that the pregnancy leave of an employee who has a stillbirth or miscarriage will be at least 17 weeks long. In some cases it may be longer.

An employee can choose to take a shorter leave if she wishes.



Here are two examples:

When an employee has a stillbirth
Wai began her pregnancy leave 15 weeks before her baby was due. On her due date she had a stillbirth. The law says that the pregnancy leave ends on the date that is the later of 17 weeks after the leave began or six weeks after the stillbirth.

In this case, the later date is six weeks after the stillbirth. Wai can stay off work for up to six more weeks after the stillbirth, for a total of 21 weeks of pregnancy leave.

When an employee has a miscarriage
Hélène began her pregnancy leave 15 weeks before her baby was due. One week later (one week into her pregnancy leave) she had a miscarriage. The law says that her pregnancy leave ends on the date that is the later of either 17 weeks after the leave began or six weeks after the miscarriage.

In Hélène's case, the later date is 17 weeks after the leave began. She will get a total of 17 weeks of pregnancy leave.

Giving Notice about Starting a Pregnancy Leave
An employee must give her employer at least two weeks' written notice before beginning her pregnancy leave. Also, if the employer requests it, she must provide a certificate from a medical practitioner.

Changing the Date a Pregnancy Leave Starts
Suppose an employee has given notice to begin a pregnancy leave. She can begin the leave earlier than she originally told her employer if she gives her employer new written notice at least two weeks before the new, earlier date.

Here's an example:

Changing the start of a pregnancy leave to an earlier date
Barbara gave her employer written notice that she would begin her pregnancy leave on September 10. Now Barbara wants to start her leave on August 27. She must give her employer new written notice by August 13 (two weeks before August 27).

An employee can also change the date she will begin her leave to a later date than she originally told her employer. To do this, she must give her employer new written notice at least two weeks before the original date she said she would begin her leave.

Here's an example:

Changing the start of a pregnancy leave to a later date
Mairead gave her employer written notice that she would start her pregnancy leave on September 10. Now Mairead wants to start her leave on September 15. She must give her employer new written notice by August 27 (two weeks before September 10).

Sometimes an employee has to stop working earlier than expected because of complications caused by the pregnancy. In this case, the employee has two weeks after she stops working to give the employer written notice of the day the pregnancy leave began or will begin.

An employee doesn't have to start her pregnancy leave when she stops working. She can go on sick leave if she chooses. If the employer requests it, the employee has to provide a medical certificate supporting her inability to work and stating the baby's due date.

If an employee stops working earlier than expected because of a birth, stillbirth or miscarriage, she has two weeks after she stops working to give the employer written notice of the day the leave began. The pregnancy leave begins no later than the date of the birth, stillbirth or miscarriage. If the employer requests it, the employee has to provide a medical certificate stating the due date and the date of birth, stillbirth or miscarriage.

Failing to Give Notice

An employee who fails to give the required notice doesn't lose her right to a pregnancy leave. She may fail to give notice because she didn't know she had to, or because she was unable to under the circumstances.

Giving Notice About Ending a Pregnancy Leave

An employee can tell her employer when she will be returning to work, but she isn't required to do so. If the employee doesn't specify a return date, the employer is to assume that she will take her full 17 weeks of leave (or any longer period that she may be entitled to).

An employer can't require an employee to return from her leave early. Also, an employer can't require an employee to prove, through medical documentation, that she is fit to return to work. The choice to return to work is the employee's.

Changing the Date a Pregnancy Leave Ends

An employee may want to change the date her leave was scheduled to end to an earlier date. If so, she must give the employer a new written notice at least four weeks before the new, earlier day.

An employee may want to change the date her leave was scheduled to end to a later date. In this case, she must give the employer a new written notice at least four weeks before the date the leave was originally going to end. Unless the employer agrees, she can't schedule a new end date to her pregnancy leave that would result in her taking a longer leave than she is entitled to under the ESA.

When an Employee Decides Not to Return to Work
Suppose an employee wants to resign before the end of her pregnancy leave, or at the end of the leave. She must give her employer at least four weeks' written notice of her resignation. This notice requirement doesn't apply if the employer constructively dismisses the employee. (See Constructive Dismissal in the "Termination of Employment" and "Severance Pay" chapters.)

Parental Leave
Parental Leave
Both new parents have the right to take parental leave: up to 35 or 37 weeks of unpaid time off work.

An employer isn't required to pay an employee who is on parental leave.

Qualifying for Parental Leave
To qualify, an employee who is a new parent must have been hired at least 13 weeks before the leave begins.

Note that an employee doesn't have to actively work for 13 weeks to be eligible for parental leave. The employee could be on layoff, vacation, sick leave or pregnancy leave for all or part of the 13-week qualifying period and still be entitled to parental leave.

A "parent" includes:

a birth parent;

an adoptive parent (whether or not the adoption has been legally finalized); or

a person who is in a relationship of some permanence with a parent of the child and who plans on treating the child as his or her own. This includes same-sex couples.
When a Parental Leave Can Begin
A birth mother who takes pregnancy leave must ordinarily begin her parental leave as soon as her pregnancy leave ends.

However, an employee's baby may not yet have come into her care for the first time when the pregnancy leave ends. For example, perhaps her baby has been hospitalized since birth and is still in the hospital's care when the pregnancy leave ends.

If this is the case, the employee can choose to return to work and start her parental leave once the baby comes home. However, she doesn't have to wait until the baby comes home to begin her parental leave.

All other parents must begin their parental leave no later than 52 weeks after:

the date their baby is born;
OR

the date their child first came into their care, custody and control.
The parental leave doesn't have to be completed within this 52-week period. It just has to be started.

Length of a Parental Leave
Birth mothers who take pregnancy leave are entitled to take up to 35 weeks of parental leave.

All other new parents are entitled to take up to 37 weeks of parental leave.

Employees may decide to take a shorter leave if they wish. However, once an employee has started parental leave, he or she must take it all at one time. The employee can't use up part of the leave, return to work for the employer and then go back on parental leave for the unused portion.

(Note: the rules under the federal Employment Insurance program are different. Under that program, employees are able to return to work and earn a certain amount of wages without having their employment insurance benefits reduced.)

Miscarriages and Stillbirths
An employee who has a miscarriage or stillbirth, or whose spouse or same-sex partner has a miscarriage or stillbirth, is not eligible for parental leave.

Giving Notice About Starting a Parental Leave
An employee must give his or her employer at least two weeks' written notice before beginning a parental leave. If an employee is also taking a pregnancy leave, she can give her employer notice of both leaves at the same time. But she doesn't have to.

Changing the Date a Parental Leave Starts
Suppose an employee has given notice to begin a parental leave. The employee can begin the leave earlier than he or she has told the employer by giving the employer new written notice at least two weeks before the new, earlier date.

Here's an example.

Changing the start of a parental leave to an earlier date
Jon gave his employer written notice that he would begin his parental leave on September 10. Now he wants to start his leave on August 27. Jon must give his employer new written notice by August 13 (two weeks before August 27).

An employee can also change the starting date of the leave to a later date than he or she originally told the employer. To do this, the employee must give the employer new written notice at least two weeks before the original date the leave was going to begin.

Here's an example.

Changing the start of a parental leave to a later date
Wendy gave her employer written notice that she would start her parental leave on September 10. Now Wendy wants to start her leave on September 15. She must give her employer new written notice by August 27 (two weeks before September 10).

An employee may have to stop working earlier than expected because the child comes into his or her custody, care and control for the first time earlier than expected. In this case, the employee has two weeks after stopping work to give the employer written notice that he or she is taking parental leave. The parental leave begins on the day the employee stops working.

Failing to Give Notice
An employee who fails to give the required notice doesn't lose his or her right to a parental leave. The failure might occur because the employee didn't know he or she had to give notice, or because the employee was unable to under the circumstances.

Giving Notice About Ending a Parental Leave
An employee can tell the employer when he or she will be returning to work, but isn't required to do so. If the employee doesn't specify a return date, the employer is to assume that the employee will take his or her full 35 or 37 weeks of leave.

An employer can't require an employee to return from leave early.

Changing the Date a Parental Leave Ends
An employee may want to return to work earlier than the date he or she was scheduled to return. If so, the employee must give the employer written notice at least four weeks before the new, earlier day.

An employee may want to return to work later than he or she was scheduled to return. In this case, the employee must give the employer new written notice at least four weeks before the date the employee was originally going to return. However, unless the employer agrees, the employee can't schedule a new return date that would result in the employee taking a longer leave than he or she is entitled to under the ESA.

When an Employee Decides Not to Return to Work
Suppose an employee decides to resign before the end of his or her parental leave, or at the end of the leave. The employee must give the employer at least four weeks' written notice of the resignation. This notice requirement doesn't apply if the employer constructively dismisses the employee. (See Constructive Dismissal in the "Termination of Employment" and "Severance Pay" chapters.)

Rights During Pregnancy and Parental Leaves
Employees on pregnancy or parental leave have several rights.


The Right to Reinstatement
In most cases, an employee who takes a pregnancy or parental leave is entitled to:

the same job the employee had before the leave began;
OR

a comparable job, if the employee's old job no longer exists.
In either case, the employee must be paid at least as much as he or she was earning before the leave.

Suppose an employee's pay would have gone up if he or she hadn't been on leave. In this case, the employee must be given the higher pay on returning to work.

If an employer has dismissed an employee for legitimate business reasons that are totally unrelated to the fact that the employee took a leave, the employer doesn't have to reinstate the employee.

The Right to Be Free from Penalty
Employers can't penalize an employee in any way because the employee:

took a pregnancy or parental leave;

plans to take a pregnancy or parental leave;

is eligible to take a pregnancy or parental leave; or

will become eligible to take a pregnancy or parental leave.
The Right to Continue to Participate in Benefit Plans
Employees on pregnancy or parental leave have a right to continue to take part in certain benefit plans that their employer may offer. These include:

pension plans;

life insurance plans;

accidental death plans;

extended health plans; and

dental plans.
The employer must continue to pay its share of the premiums for any of these plans that were offered before the leave, unless the employee tells the employer in writing that he or she won't continue to pay his or her own share of the premiums (if any).

In most cases, employees must continue to pay their share of the premiums in order to continue to participate in these plans.

Employees who are on pregnancy or parental leave can also continue to participate in other benefit plans if employees who are on other types of leave are able to continue to participate in those plans.

In addition, a birth mother may be entitled to disability benefits during that period of the leave that she would otherwise have been absent from work for health reasons related to the pregnancy or birth.

The Right to Earn Credits for Service and Seniority
Although an employee doesn't have to be paid during a pregnancy or parental leave, the employee continues to earn credits toward seniority, service and length of employment -- just as if he or she had stayed at work.

Here are three examples:

Length of service
Trin's employment contract states that she earns 1½ paid vacation days for every month of service. Her length of service continues to accrue (accumulate) while she's on pregnancy and parental leave. This means she continues to earn 1½ days of paid vacation every month during her leaves, and she's entitled to full vacation with pay after she returns to work.

Vacation time versus vacation pay
Yves earns two weeks of vacation time for every 12 months he's employed. Because his length of employment continues to accrue while he's on parental leave, Yves continues to accrue vacation time during his leave just as if he were still at work.

However, Yves' vacation pay is calculated as four per cent of the gross wages he earns. He isn't earning any wages during his parental leave. Therefore, he doesn't earn any vacation pay while he is on leave.

Seniority
Karen is a member of a union that has bargaining rights at her workplace. Under the collective agreement, an employee's seniority determines such things as order of layoff and recall, job promotions and annual vacation entitlements. Karen continues to accrue seniority for all purposes during her pregnancy and parental leaves, just as if she had been actively employed.

Probation
The period of a leave isn't included when determining whether an employee has completed a probationary period. If an employee was on probation at the start of a leave, he or she must complete the probationary period after returning to work.更多精彩文章及讨论，请光临枫下论坛 rolia.net