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
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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