Archived - Discussion Paper on the Review of Labour Standards in the Canada Labour Code

Archived Content

Information identified as archived on the Web is for reference, research or recordkeeping purposes. It has not been altered or updated after the date of archiving. Web pages that are archived on the Web are not subject to the Government of Canada Web Standards. As per the Communications Policy of the Government of Canada, please contact us to request an alternate format.

II. Supporting Working Families

3. Length of Service Requirements for Maternity, Parental and Sick Leave

Commission Recommendations:
  • Employees who do not meet the current length of service requirement under Part III, but who qualify for maternity, parental or sickness benefits under the Employment Insurance (EI) program should be entitled to maternity, parental or sick leave, as applicable.
  • An additional period of leave without pay should be provided under Part III to cover any period during which the employee is receiving—or is serving a waiting period before receiving—sickness benefits under the EI program. (R. 7.52)

In order to be entitled to maternity or parental leave under Part III, employees must have completed at least six consecutive months of continuous employment with the same employer. Maternity leave can be taken for up to 17 weeks and parental leave for up to 37 weeks, although the combined duration of maternity and parental leave taken by the same employee cannot exceed 52 weeks.

To take sick leave, employees must have completed three consecutive months of continuous employment with the employer. Sick leave can be taken for up to 12 weeks.

Entitlement to maternity, parental or sick leave under Part III is a distinct issue from entitlement to maternity, parental or sickness EI benefits. Under Part III, the employee must have completed a minimum amount of service with the employer who is granting the leave in order to be eligible for it. This is based on the view that the employee should have to work for at least some minimum period of time before any economic cost of a prolonged absence is imposed on the employer. In contrast, EI benefits are based on workforce attachment. The employee makes contributions to EI whenever he or she works, and after a certain number of insured hours are logged, the employee may be eligible to draw on the benefits. To qualify for maternity, parental or sickness benefits, claimants must have accumulated 600 insured hours in the past 52 weeks, or since the start of their last claim. These hours can be worked with any number of employers.

There is some merit to the idea that provisions for unpaid leave under employment standards legislation and provisions for benefits under EI should be harmonized. For instance, it may seem unfair if employees are entitled to parental benefits under EI, but not to the leave of absence from work that would allow them to draw those benefits. On the other hand, it may be unreasonable to expect employers to provide unpaid leave on the same terms as EI benefits.

That being said, the six-month service requirement for maternity and parental leave under Part III is longer than that in many provinces. Some provinces—British Columbia, New Brunswick and Quebec—do not require a specific length of service. Ontario requires 13 weeks of service; Newfoundland and Labrador as well as Prince Edward Island require 20 continuous weeks; and Saskatchewan requires 20 weeks in the 52 weeks preceding the requested leave. In order to class Part III with other Canadian jurisdictions, the six months’ service requirement could be reduced (e.g., to three months). This would also increase the likelihood that employees will be entitled to both EI benefits and leave. As well, sick leave in Part III only requires three months of service. It may be inconsistent to have different length of service requirements for sick leave on the one hand and parental and maternity leave on the other hand.

For discussion:
  • To what extent should parental, maternity and sick leave under Part III be classed with EI benefits?
  • Would it be reasonable to reduce the current length of service requirement for parental and maternity leave from six months to three months?

4. Flexibility for Parental and Maternity Leave

Commission Recommendations:
  • Each parent of a child should be entitled to take the full duration of parental leave.
  • Employees should be entitled to divide parental leaves into two periods, provided that they give the employer sufficient notice.
  • Employees should be allowed to suspend their parental or maternity leave once, and postpone the remaining weeks of leave, if the child is hospitalized for a period likely to exceed two weeks. If for any valid reason the employer cannot reinstate the employee during the period of suspension, the employee should be entitled to an extension of leave that is equal to the period of the child’s hospitalization. (R. 7.53, 7.54, T7.7)

The recommendations with respect to parental and maternity leave appear to not only address issues of concern to employees, but may have minimal consequences for employers.

The Commission received a number of suggestions that parental leave should be expanded beyond 37 weeks. The Commission, however, declined to make such a recommendation, recognizing that this may cause a hardship on employers. Instead, the Commission recommended that each parent be entitled to take 37 weeks of leave, rather than be required to share it. This provision would only have practical implications where both parents are employed in the federal jurisdiction. The majority of provinces already permit both parents to take the full period of parental leave. This recommendation would bring Part III provisions with respect to parental leave in line with provincial legislation.

If the Commission’s recommendation is not acceptable, another option might be to provide a distinct entitlement to short-term paternity leave that would allow employees to spend time at home with their partner around the time of a birth or adoption. For instance, Quebec provides employees with the right to take five days off at the time of the birth or adoption of a child. This must be taken within fifteen days of the child’s arrival in the home. In the case of a biological child, employees are entitled to another five weeks off, which can be taken at any time beginning in the week of the birth and ending a year from the week of the birth. Many industrialized nations, including the UK and New Zealand, also provide for short-term paternity leave.

The Commission also recommended that an employee be entitled to take parental leave at two different times, rather than all at once. For instance, this would allow new fathers to provide support in the period immediately surrounding the birth of a child, and a second period at a later time. It could also allow a parent at home to briefly return to work if he or she wished to do so. If this recommendation is implemented, it may be useful to specify the length of notice to be given to the employer in order to fraction parental leave into two periods. Employees should also be made aware that the decision to take parental leave in this manner may affect their entitlement to EI benefits.

The Commission’s recommendations would have the added benefit of allowing employees of federally-regulated employers in Quebec to take advantage of the new parental insurance program which, in addition to maternity and parental benefits, provides for a maximum five weeks of paternity benefits, for a total of up to 55 weeks of benefits.

The Commission also made a recommendation regarding the suspension of maternity or parental leave while a child is hospitalized. This recommendation reflects the approach of some provinces. If a newborn child is hospitalized, it may be pointless for a parent to be on maternity or parental leave if they cannot provide care to their child. An employee could then use his or her postponed leave to provide care for the child after he or she is discharged from the hospital.

Under the Commission’s proposal, if the employer has already hired someone to replace the employee on leave, it would not be required to take back the employee during the child’s hospitalization. It would only have to extend the employee’s leave. This may help lessen the administrative burden for the employer.

For discussion:
  • Should both parents be entitled to take 37 weeks of parental leave, rather than be required to share it?
  • If the Commission’s recommendation is not acceptable, should there be a distinct entitlement to short-term paternity leave that allows one employee to spend a brief period of time at home simultaneously with his or her partner, around the time of the birth or adoption?
  • Should employees be entitled to split their parental leave into two fractions? If so, what type of notice should be given to the employer of the employee’s intention to split their parental leave?
  • Should employees be entitled to suspend their maternity or parental leave once, and postpone remaining weeks of leave, where a child is hospitalized for a period likely to exceed two weeks? Should it be left to the employer’s discretion as to whether to reinstate the employee during the period of hospitalization?

Footer

Date Modified:
2012-02-15