Recent amendments to the Canadian federal Employment Insurance (EI) program and changes to other federal/provincial legislation, have significantly increased the combined length of job-protected pregnancy and parental leave to, in some cases, 18 months. It is likely just a matter of time before all Canadian provinces follow suit.

By Amanda J. Hunter, Hicks Morley

Job-protected leaves

In Canada, parents are entitled to job-protected leaves of varying lengths. There are 14 jurisdictions in Canada: 10 provinces, 3 territories and the federal government (for the approximately 10% of employees who are employed by federally regulated employers such as banks, airlines, telecommunications, nuclear facilities, country-wide and international transportation companies, etc.), all of which have minimum standards legislation regulating employment. Since 2001, a majority of these jurisdictions have provided a combined pregnancy and parental job-protected leave of 52 weeks. Typically the leave is broken down between a 17 or 18 week pregnancy leave and a 34 to 37 week parental leave with a birth mother’s leave typically not exceeding 52 weeks total. In Nova Scotia, the parental leave is up to 52 weeks for employees who don’t take pregnancy leave.

Until recently, Québec was the only jurisdiction providing for a combined pregnancy and parental leave in excess of 52 weeks. Parental leave in Québec is 52 weeks in addition to the 18 week pregnancy leave and the 5 week paternity leave. Québec is also the only jurisdiction that provides for paternity leave.

Payments during leave

In addition to the job-protected leave, employees may also access EI benefits during their leave. For all jurisdictions except for Québec, these benefits are administered by the federal government and, until recently, employees were paid 55% of their wages up to a set maximum. The benefits continue for 50 weeks (15 weeks maternity benefits and 35 weeks parental benefits) with the parental benefits shared between mothers and fathers. Employees must work a minimum number of hours in order to qualify for EI benefits.

Since 2006, Québec has had its own Parental Insurance Plan (QPIP) which currently provides for up to 50 weeks of paid benefits at 70%, 75% and 55% depending on which plan the employee chooses and which parent is taking the leave. The percentage is paid up to a maximum salary with the cap being significantly higher than for the federal EI benefits. The federal maximum for 2018 is $51,700 whereas the Québec maximum is $74,000.00.

Many public and larger employers offer top-ups in addition to the EI and QPIP benefits but employer paid maternity or parental leaves are not mandatory in any jurisdiction.

Changes to the federal EI Act

Effective December 3, 2017, the federal government changed the EI parental benefits. The changes allow for the payment of parental benefits over a longer period at a lower benefit rate. Now, parents have the option of choosing 35 weeks of parental benefits at 55% of their wage, or the extended parental benefits of 61 weeks at 33% of their wage. The effect of this change is that paid EI benefits are now available for up to a total of 76 weeks (including 15 weeks maternity benefits).

Changes to minimum parental leave

At the same time that the EI parental benefits were changed, the federal government also increased the length of the job-protected leave under the Canada Labour Code which applies to federally regulated employees. The new parental leave for federal employees is now either 61 or 63 weeks. Birth mothers who take pregnancy leave of 17 weeks are entitled to 61 weeks of parental leave, giving a total of 78 weeks leave. Other parents are entitled to the 63 week leave, except that where both parents work for the same employer, the 78 weeks of leave is shared between both parents. Pregnancy leave was not extended under the amendments.

Two other jurisdictions have followed the lead of the federal government and have also increased parental leave under their minimum standards legislation. Ontario recently added the extended leave as part of the wide-sweeping changes to the Employment Standards Act, 2000 under the Fair Workplaces, Better Jobs Act, 2017. The longer leaves of 61 weeks for birth mothers or 63 weeks for other parents also became effective on December 3, 2017.

Alberta amended its legislation, the Employment Standards Code, to allow the government to issue regulations changing leave provisions to reflect the EI Act. It then issued a regulation increasing parental leave to up to 62 weeks to be taken within 78 weeks of the birth of a child. The changes were effective from 1 January 2018.

On 2 February 2018, the New Brunswick legislature introduced Bill 44, An Act to Amend the Employment Standards Act. If passed, it will increase the length of parental leave from 37 weeks to 62 weeks, to be taken within 78 weeks of the time the child was born or, if adopted, from when the child came into the parent’s care and custody.

The only other jurisdiction to introduce legislation to respond the changes to EI is Manitoba where a private members bill was defeated after its first reading in early December 2017.

Comment

There are now four jurisdictions in Canada that provide for combined pregnancy and parental leaves of 70 to 78 weeks in length. It is likely just a matter of time before the other jurisdictions follow suit, as was the case in 2001 the last time the benefits were increased.