Can You Lose Your Job In Canada While On Maternity Leave?

The Canada Labour Code states that employers cannot dismiss, suspend, layoff, demote, or discipline employees due to pregnancy, intention to take, or being taking maternity or parental leave. If an employer releases an employee because they are pregnant or taking maternity leave, they commit a human rights violation. If an employee is let go while on maternity or parental leave, they should receive standard severance pay.

Another common misconception is that you cannot dismiss an employee on leave (sick, pregnancy, and parental or other) or shortly after they return to work. However, it is unlawful to do so. Human rights and employment standards legislation forbid termination in circumstances where pregnancy or maternity leave play any role in the dismissal.

Employees can legally terminate an employee on maternity leave for any non-discriminatory reason, but they cannot terminate an employee because of maternity leave. Employment laws in Canada allow new parents to take significant time off work through parental and maternity leave. However, employers and employees are often unaware of the limitations of maternity leave, which must end no more than 52 weeks after the date of delivery and parental leave, which must end no later than 104 weeks after the day on which the child is born or comes into the workforce.

Employers can lawfully terminate an employee on maternity leave for any non-discriminatory reason (or no reason at all), but they cannot terminate an employee because of maternity leave. Canadian parents increasingly find themselves laid off while on maternity or parental leave amid a cooling labor market and mass layoffs. Maternity leave does not prevent them from eliminating their position under a restructuring.

While it is possible to be fired or laid off while on maternity leave, employees have rights as an employee. At Soni Law Firm, we are the No. 1 law firm representing Canadian employers in employment law.

Can You Terminate Someone On Maternity Leave In Canada?

Mass terminations are legally permissible, allowing employers to terminate employees on maternity leave as long as the reason is unrelated to the pregnancy or leave. Termination during maternity leave becomes unlawful if linked to those circumstances, constituting a human rights violation. To establish that a termination due to maternity leave is illegal, the individual must illustrate that the dismissal was influenced by the maternity leave. Employers can, however, terminate for non-discriminatory reasons, such as corporate restructuring, but cannot dismiss employees for having taken maternity leave.

In Ontario, human rights and employment legislation mandates an employee’s right to reinstatement upon returning from maternity leave, ensuring they are returned to their original position or an equivalent one. Pregnancy or maternity leave cannot serve as valid grounds for dismissal, suspension, or demotion. Termination during maternity leave may occur, but employees retain protection in their right to return to their job post-leave.

The legislation is strict on dismissals related to maternity or pregnancy, and employees should seek legal advice if terminated during this period. While technically possible to dismiss non-unionized workers during parental leave, it is highly unlikely in practice due to strict regulations against discriminatory reasons for firing. In summary, while employers may terminate employment for non-discriminatory reasons, protections exist to uphold the rights of employees on maternity leave.

What Happens If You Get Laid Off While On Maternity Leave?

Being laid off during maternity or parental leave is possible, although it can be complex. Your layoff may happen before or after your maternity leave, depending on your employer's restructuring plans. If laid off while on leave, you may qualify for unemployment benefits, although quitting can complicate this. Legal expert Donna Ballman notes that it is legal for companies to lay off employees on parental leave, provided the layoff is for legitimate business reasons and not because of the employee's leave status. If you are terminated shortly after returning from maternity leave, it may constitute wrongful termination or retaliation, and you have legal recourse.

Employees taking parental leave are still entitled to their benefits, which can last up to 18 months. However, if laid off prior to returning to work, you might be ineligible for Employment Insurance (EI). If a layoff relates directly to pregnancy or maternity leave, it could indicate discrimination, allowing for potential legal claims. Under the Family and Medical Leave Act (FMLA), your job may be protected, and employers are prohibited from retaliating against you for taking leave. Ultimately, understanding your rights and exploring legal options is essential if you face such a situation during your leave.

What Are The Maternity Leave Laws In Canada?

In Canada, maternity leave is a provision for women's health needs related to childbirth, allowing pregnant employees up to 17 weeks of leave. This period can commence no earlier than 13 weeks before the due date and concludes no later than 17 weeks after delivery. The law mandates that employers hold the employee's job during this leave. Female employees are entitled to take this leave, but they are not required to do so unless they are unable to perform essential job functions.

Maternity leave specifically applies to biological mothers and can be taken before or after the child's birth. Additionally, Canada offers extensive parental leave options, including a standard leave of up to 40 weeks or an extended option allowing for 69 weeks, with varying payment structures. Paid maternity leave benefits provide 55% of the employee’s income, or up to $668 CAD weekly, available for a maximum of 15 weeks. Maternity benefits can start as early as 12 weeks before the expected birth.

The policy for maternity leave contrasts sharply with the U. S., where federal parental leave policies are limited. Overall, Canada’s maternity and parental leave system emphasizes job protection and financial support during critical family expansion periods, demonstrating a commitment to accommodating working mothers and parents.

How Many Weeks Of Maternity Leave Can I Get In Canada?

In Canada, eligible employees can receive up to 16 weeks of maternity leave under the Employment Insurance Act, comprised of 15 weeks of benefits and a one-week unpaid waiting period. According to the Canada Labour Code, maternity leave entitlement may extend to 17 weeks. After the 15-week maternity leave, parents can opt for parental benefits, which are either standard (up to 35 weeks) or extended (up to 61 weeks), beginning from the child’s birth week or the adoption week.

Maternity leave can commence no earlier than 13 weeks before the due date, although in some provinces it may allow for up to 19 weeks of leave. Eligible biological and surrogate mothers can access this 15-week maternity leave, while biological, adoptive, or legally recognized parents can share an additional 35 weeks of parental benefits. Both parents may choose to take parental leave concurrently; however, they must apply for Employment Insurance and select a uniform leave option—standard or extended.

Parents can claim paid benefits at 55% of their salary (with a cap of $668/week) for 15 weeks of maternity leave, followed by varying durations of parental benefits. Overall, the leave and benefits structure supports new parents during and after childbirth or adoption.

Do You Have To Stay At A Job After Maternity Leave?

After maternity or paternity leave, there is no legal obligation to return to work; you can resign at any time for any reason. However, many women feel financially unable to quit, or they may love their jobs and wish to continue working. Some may prefer an extended leave due to concerns about their career trajectory or earning potential. Employers cannot force you back, but if you resign, you might have to repay some or all of your maternity pay. Under the Family and Medical Leave Act (FMLA), certain benefits must remain available during leave, ensuring job protection for those taking time off for childbirth or adoption.

If considering resignation post-maternity leave, factors like finances, benefits, and personal values should be evaluated. Experts recommend strategies for communicating with employers if you decide not to return. Generally, maternity leave lasts about 12 weeks, and returning to work for a short period before resigning is a strategy some women employ. Ultimately, the decision to return to work or stay home hinges on financial considerations, with family priorities taking precedence. If your employment contract does not restrict quitting after leave, you can freely make this choice.

Can I Be Laid Off While On FMLA?

FMLA leave offers protections to employees, but it does not guarantee immunity from layoffs. An employer can lay off an employee on FMLA leave if that employee would have been laid off regardless of their leave status. Although it is illegal to terminate an employee specifically due to taking FMLA leave, layoffs can occur, provided the employer adheres to specific regulations. Employers must demonstrate that the layoff decision is unrelated to the employee's use of FMLA leave.

Employees are entitled to take FMLA leave in various forms, including continuous leaves or intermittent leaves for medical needs. However, once an employee is laid off, their eligibility for FMLA protections ceases since they are no longer considered employees. Additionally, documentation of performance issues is crucial if a layoff is connected to poor performance during FMLA leave. Under California law, retaliation against employees for taking FMLA leave is prohibited.

Thus, while FMLA provides job protection during leave, it does not shield employees from layoffs that would have occurred irrespective of their leave status. Employees should maintain detailed records in case of potential disputes or litigation regarding their FMLA rights and employment status.

Can I Be Fired After Returning From Maternity Leave?

You can be fired after returning from maternity leave, but only if the reasons are non-discriminatory. If you believe your termination relates to your parental status, consulting a human rights lawyer is advisable. Employers have the right to dismiss employees during or after maternity leave, provided the reasons are unrelated to the leave itself and consistent with standard practices. Layoffs due to workload reduction can result in firings even if they occur during maternity leave.

If you are terminated shortly after returning, you may have grounds for wrongful termination or retaliation claims, especially if you invoked the Family and Medical Leave Act (FMLA) for your leave. Employers cannot compel you back to work post-leave without repercussions if you quit voluntarily, potentially requiring repayment of maternity pay. If you suspect unlawful termination, document your situation and seek legal counsel immediately. While an employer may dismiss an employee post-maternity leave under legitimate reasons, terminating solely for having taken the leave is prohibited.

If you believe you’ve been treated unfairly upon your return from maternity leave, it’s essential to discuss it with an experienced attorney. Employers should ideally support returning employees and provide severance if terminations are necessary. Understanding your rights regarding maternity leave and potential termination is crucial for proper advocacy and support.

Can You Be Laid Off Before Maternity Leave In Canada?

In Canada, employees can be laid off before taking maternity leave for valid reasons, such as misconduct or corporate downsizing, independent of their maternity leave application. If a worker is terminated before commencing maternity leave, they may not qualify for maternity benefits unless they have worked the necessary 600 hours within the prior 52 weeks. It is a common misconception that workers cannot be dismissed while on maternity leave. Legally, an employer can fire an employee during maternity leave for non-discriminatory reasons, like corporate restructuring, as long as the termination isn't related to their maternity status.

Human rights laws in Canada protect employees from being fired solely due to pregnancy or maternity leave applications. Employment standards legislation mandates that maternity leave lasts no more than 52 weeks after childbirth, while parental leave is capped at 104 weeks. Both employees and employers need to be aware of the rights associated with maternity and parental leave. Although layoff during maternity or parental leave can occur, it is crucial that these decisions are unrelated to the employee's pregnancy.

If an employee is terminated during their leave, a review by a lawyer may be advisable to assess their rights regarding severance and ongoing entitlements, including Employment Insurance (EI) benefits.

What If My Employer Fired Me Before Maternity Leave In Canada?

If you've been unjustly laid off before maternity leave in Canada, consider filing a complaint via labor standards or human rights legislation. Consulting an employment lawyer can help evaluate whether your termination is justified, as you cannot be fired for taking maternity leave, though misconduct can be a valid reason. If laid off for misconduct, you won't qualify for regular Employment Insurance (EI) benefits but may still access maternity benefits if eligible.

It's crucial to scrutinize any reasons provided by your employer if they don’t reinstate you after your leave. While an employer cannot terminate an employee for being pregnant, they can legally fire an employee on maternity leave for non-discriminatory reasons, like corporate restructuring. An employee must commence maternity leave to gain protection from wrongful termination. Employees are entitled to severance pay if terminated before, during, or after maternity leave, and they may argue for additional compensation based on personal circumstances.

If you suspect unlawful practices from your employer, especially regarding maternity leave, seek legal counsel. The government guarantees minimum protections, but consulting a wrongful dismissal attorney is advisable to ensure your rights are fully upheld.