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Maternity Leave - 808-1-IPG-017

Part III — Canada Labour Code — Division VII — Maternity Leave

Effective Date: November 20, 2002 (Revised)

1. Subject

Treatment of Miscarriage, Abortion or Stillbirth Under Section 206.

2. Issue

Human Resources Development Canada (HRDC) - Labour Program has been asked to clarify whether female employees undergoing a miscarriage or abortion, or delivering a stillborn child, are entitled to 17 weeks of leave under section 206.

3. Question

Does "confinement" under section 206 include a miscarriage, abortion or stillbirth?

4. Conclusion

Section 206 grants a pregnant woman up to 17 weeks of leave, commencing not earlier than 11 weeks before the estimated date of confinement and ending no later than 17 weeks after the actual day of confinement. This leave is for the woman's health-related needs surrounding childbirth.

Given the developments made in the field of obstetrics, it is now possible that a woman could give birth prior to the third trimester (final three months) of her pregnancy. In other words, her actual confinement could precede "11 weeks prior to the estimated date of her confinement".

However, the actual day of confinement overrides an estimated date of confinement. In other words, an employee is entitled to 17 weeks of leave after the actual date of confinement, regardless of when the confinement occurs (assuming, of course, that she meets the other conditions precedent).

One must, therefore, define "confinement" (and "accouchement" in the French text). The usual medical meaning of "accouchement" is any termination of the pregnancy during the third trimester, regardless of whether it is a live birth or stillbirth. The term "confinement" is less precise, but generally encompasses the concepts of delivery or childbirth.

In order to ensure that all appropriate cases are entitled to 17 weeks of leave, while at the same time providing an easy guideline for inspectors, HRDC - Labour Program's policy is to consider any termination after the 19th week of pregnancy to be a confinement. This eligibility period can normally be calculated on the basis of the "estimated date of confinement" given on the medical certificate required under section 206(b).

This period is selected for two reasons: it reflects women's actual experience that any termination after 19 weeks generally amounts to the same process as childbirth at term and she thus incurs the same health-related needs, and it is consistent with the eligibility period for maternity benefits under the Employment Insurance Act.

Note (1): For any earlier termination of her pregnancy, the woman can take advantage of the protections in Division XIII (Sick Leave).

Note (2): Parental Leave under section 206.1(1) would not accrue after an abortion, miscarriage or stillbirth, since the employee must have actual care and custody of a newborn child.

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Date Modified:
2011-09-23