The Employment Standards Act, 2000 entitles a pregnant employee a leave of absence without pay unless the baby is due before 13 weeks of employment. The employee does not have to be actively performing the work for 13 weeks but must be employed with the company for at least 13 weeks before the baby is due. She can start her pregnancy leave 17 weeks before the due date or the day she gives birth. The choice is hers to make. The employer cannot tell her when to start her pregnancy leave. If she needs more than 17 weeks before the due date, she can ask for time off with or without pay. The employer cannot terminate her or take any action against her if she requires time off due to pregnancy.
The employee is expected to give at least two weeks written notice to the employer before starting her pregnancy leave or a certificate from a legally qualified medical practitioner stating the due date. Although, the Act requires the employee to comply with these conditions, it is not an absolute requirement. However, the employee should provide as much notice as possible before starting a pregnancy leave to give the employer adequate time to make alternate arrangement during employee’s absence. The employee may change the date by giving a new notice at least two weeks prior to start of pregnancy leave. The employee is entitled to 17 weeks of pregnancy leave. The employee may give 4 weeks written notice before ending her leave and she may change her date of return by giving 4 weeks written notice. The employee is required to give at least 4 weeks written notice before terminating her employment with the company.
In addition to pregnancy leave, the employee who has taken pregnancy leave is entitled to unpaid parental leave for additional 35 weeks. Parental leave must start when pregnancy leave ends. The spouse of the employee who has taken both pregnancy and parental leave is also entitled to unpaid parental leave no later than 52 weeks after the day the child is born. The employee is required to give written notice to the employer at least two weeks prior to the start of leave. The employee may change the date by giving a new written notice at least two weeks prior to starting a leave. The employee may change the date of return than originally stated by giving at least four weeks written notice.
The employee continues to enjoy all benefits during the leaves unless he or she decides not to by virtue of written notice.
The employer must give the old job back to the employee after the leave ends or a new job, which is comparable to the old job if the old job does not exist. However, if the employee is terminated for reasons, which are unrelated to the leave, the employer does not have to give the job back. The onus is on the employer to prove that the resulting termination has nothing to do with the fact that the employee has taken a leave or will take a leave.
This information is only provided to guide you about your entitlements under the Employment Standards Act, 2000 and should not be considered as a legal advice.
This article is provided by Rajinder K. Batra, who is a retired Employment Standards Officer with the Ministry of Labour with 15 years experience in these matters.
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