When an employee provides notice that they will be commencing a maternity or parental leave, many employers have questions regarding their obligations to that employee.
In Alberta, once an employee has been employed with an employer for 52 consecutive weeks, the employee is thereafter eligible to take a maternity and/or parental leave whenever the employee gives birth to, fathers or adopts a child throughout the employee’s tenure with the employer.
A maternity leave, for birth mothers, can be up to 15 weeks in length. A parental leave, for birth mothers, fathers and adoptive parents, can be up to 37 weeks in length. The employer is not required to make any payments to the employee during a maternity or parental leave. However, in Alberta, employers must provide an employee on maternity or parental leave with job protection. As such, a maternity or parental leave is not a break in service, nor can an employee (except for in limited circumstances) be terminated once the employee has commenced a maternity or parental leave. In addition, an employee who is ready to return to work after a maternity or parental leave must be reinstated. This reinstatement must be into the same or a comparable position with the same compensation as the employee had when the employee commenced the leave. Failure to reinstate is prohibited by the Employment Standards Code and is a punishable offence under the Code, for which an employer can be prosecuted.
In addition, as we have discussed on our blog here, protection of an employee’s family status is a growing area in human rights cases. Upon return from a maternity or parental leave, an employer must also be alive to any accommodation that the employee may require due to the employee’s family status. Where the factors set out in Johnstone are present, an employer must accommodate an employee’s child care obligations to the point of undue hardship.
When an employer has questions regarding its obligations surrounding maternity and parental leaves, it is best to seek out advice from an employment law professional, to ensure that the employer does not accidentally run afoul of its employment standards and human rights obligations.