10,000 LEAVES OF ABSENCE

Transcription

1 CCH CAADIA LIMITED T PAGER Username: zulika Date: 29-MAR-06 Time: 8:47 Seq: 1 Free lead: 185D ext lead: 0D Comment: Chapter 10 10,000 LEAVES OF ABSECE Paragraph Paragraph Introduction... 10,005 Federal... 10,405 Maternity/Parental leave... 10,010 ew Brunswick... 10,425 Introduction... 10,015 ewfoundland and Labrador.. 10,430 Maternity and Parental Leave ova Scotia... 10,435 Chart... 10,020 Ontario... 10,440 Federal... 10,025 Prince Edward Island... 10,445 Alberta... 10,030 Quebec... 10,450 British Columbia... 10,035 Saskatchewan... 10,455 Manitoba... 10,040 Yukon Territory... 10,465 ew Brunswick... 10,045 Compassionate Care Leave... 10,466 ewfoundland and Labrador.. 10,050 Federal... 10,467 ova Scotia... 10,055 Manitoba... 10,470 Ontario... 10,060 ew Brunswick... 10,471 Prince Edward Island... 10,065 ewfoundland and Labrador.. 10,472 Quebec... 10,070 Saskatchewan... 10,075 ova Scotia... 10,473.W.T./unavut... 10,080 Ontario... 10,475 Yukon Territory... 10,085 Prince Edward Island... 10,476 Paternity Leave... 10,100 Quebec... 10,477 Quebec... 10,150 Saskatchewan... 10,478 Adoption Leave... 10,200 unavut... 10,480 ewfoundland and Labrador.. 10,230 Yukon... 10,481 Quebec... 10,250 Court Leave... 10,490 Saskatchewan... 10,255 Family Responsibility/Emergency Bereavement Leave... 10,300 Leave... 10,500 Federal... 10,305 British Columbia... 10,505 British Columbia... 10,315 ew Brunswick... 10,506 ew Brunswick... 10,325 Ontario... 10,508 ewfoundland and Labrador.. 10,330 Prince Edward Island... 10,509 ova Scotia... 10,335 Quebec... 10,510 Ontario... 10,340 Education Leave... 10,600 Prince Edward Island... 10,345 Voting at Elections... 10,700 Quebec... 10,350 Federal... 10,705 Saskatchewan... 10,355 Provincial... 10,710 Yukon Territory... 10,360 Municipal... 10,715 Sick Leave... 10,400 Jury Duty... 10, ,000

2 CCH CAADIA LIMITED T PAGER Username: zulika Date: 29-MAR-06 Time: 8:47 Seq: 2 Free lead: 30D ext lead: 110D Comment: 260 Canadian Master Labour Guide 10,005 Introduction While paid vacations were well developed by the 1960s, leaves of absence are a relatively new phenomenon and are a response to the changing and competing interests of our society. Maternity and parental leave recognize the growing number of women in the work force, are an attempt to balance the competing interests of child bearing and rearing and work force involvement, and are partially compensated through government funding. Other forms of leave, such as education leave, recognize the need for and the benefits of a skilled and continually upgraded workforce that can respond to changes in workplace technology. At present most education leave provisions are found in collective agreements and are compensated for by the employer. This section will discuss leaves of absence for reasons such as maternity, parental, adoption, bereavement, sickness, family responsibility, compassionate care, education, special occasions, voting, and jury duty. ote: On April 1, 1999, the new territory of unavut came into being. The Federal legislation creating the new territory has declared that orthwest Territories legislation will apply to unavut until the new territory passes its own legislation. For the purposes of this commentary, unavut and orthwest Territories law should be presumed to be the same, except where otherwise stated. 10,010 Maternity/Parental Leave 10,015 Introduction The federal government and all the jurisdictions provide for maternity leave in their labour legislation. The provisions generally state that a pregnant employee who has worked for the same employer for a specified period of consecutive months is entitled to an unpaid maternity leave of 17 or 18 weeks. While on leave the individual continues to be an employee and at the end of her leave the employer is required to reinstate her to the position she held prior to the leave or to an alternative position of a comparable nature. During the leave, employees may be eligible for Employment Insurance benefits (see 28,425). The federal government and all the jurisdictions provide for parental or child care benefits in their labour legislation. The provisions typically state that a natural or adoptive parent who has worked for the same employer for a specified period of consecutive months is entitled to an unpaid parental leave of between 35 and 52 weeks, depending on the jurisdiction. Parental leave may be taken by both parents in some jurisdictions and must be shared between the parents in other jurisdictions. While 10,015

3 CCH CAADIA LIMITED T PAGER Username: zulika Date: 29-MAR-06 Time: 8:47 Seq: 3 Free lead: 827D ext lead: 0D Comment: Leaves of Absence 261 on leave, the individual continues to be an employee and at the end of the leave must be reinstated under similar provisions as set out under maternity leave below. As with maternity leave, employees on parental leave may be eligible for Employment Insurance benefits. The following chart provides a convenient overview of the provisions in each jurisdiction. 10,020 Maternity/Parental Leave Chart Qualif ying Length Required Seniority/ Jurisdiction Period of Leave Extension otice Reinstatement Benefits Federal 6 months 17 weeks not 4 weeks same/similar employment (pregnancy) specified position with deemed same wages/ continuous; (parental) 6 months 37 weeks not 4 weeks benefits employer to specified continue making payments to benefit plans Alberta 52 weeks 15 weeks not 6 weeks same/compara- same wages/ (pregnancy) specified ble position benefits that with same accrued to wages date leave commenced (parental) 37 weeks not 6 weeks specified British not specified 17 weeks 6 weeks 4 weeks same/compara- services Columbia ble position deemed (pregnancy) with all continuous; increments/ employer to benefits continue making as if leave payments to not taken benefit plans (parental) not specified 37 weeks; 5 weeks 4 weeks 35 weeks if pregnancy leave is taken Manitoba 7 months 17 weeks not 4 weeks same/ services (pregnancy) specified comparable deemed position continuous wages/benefits as before leave began (parental) 7 months 37 weeks not 4 weeks specified 10,020

4 CCH CAADIA LIMITED T PAGER Username: zulika Date: 29-MAR-06 Time: 8:47 Seq: 4 Free lead: 1199D ext lead: 0D Comment: 262 Canadian Master Labour Guide Qualif ying Length Required Seniority/ Jurisdiction Period of Leave Extension otice Reinstatement Benefits ew not specified 17 weeks not 4 months same/ no loss of Brunswick specified notice of equivalent seniority/ (pregnancy) intent to position benefits/ take leave; wages 2 weeks accrued to notice of date leave commencement commenced of leave (child care) not specified 37 weeks not specified 4 weeks (natural child) 4 months (adoptive child) ewfoundland 20 weeks 17 weeks not 2 weeks wages, duties, employment and Labrador specified benefits, and deemed (pregnancy) position not continuous; less beneficial benefits than before do not accrue leave unless agreed to (parental) 20 weeks 35 weeks not specified 2 weeks ova Scotia 1 year 17 weeks not 4 weeks same/compara- no loss of (pregnancy) specified ble position; seniority/ same wages, benefits benefits accrued to date leave commenced; (parental) 1 year 52 weeks; not 4 weeks not employee has 35 weeks if specified specified option to pregnancy maintain leave is benefits at taken own expense Ontario 13 weeks 17 weeks 6 weeks 2 weeks same/compara- period of leave (pregnancy) prior to ble work; included in estimated same wages calculation of delivery date as at date length of leave employment/ commenced seniority; (parental) 13 weeks 37 weeks; not 2 weeks employer to 35 weeks if specified continue making pregnancy payments to leave is benefit plans taken 10,020

5 CCH CAADIA LIMITED T PAGER Username: zulika Date: 29-MAR-06 Time: 8:47 Seq: 5 Free lead: 712D ext lead: 0D Comment: Leaves of Absence 263 Qualif ying Length Required Seniority/ Jurisdiction Period of Leave Extension otice Reinstatement Benefits Prince 20 weeks 17 weeks not 4 weeks same/compara- no loss of Edward specified ble work; seniority/ Island same wages/ benefits (pregnancy) benefits as if accrued leave not to date leave taken taken/employer not obliged to pay pension benefits during leave (parental) 20 weeks 35 weeks not 4 weeks specified Quebec none 18 weeks not 3 weeks same position same rights and (pregnancy) specified benefits as if no leave taken (parental) none 52 weeks not 3 weeks same position specified Saskatchewan 20 weeks 18 weeks 6 weeks 4 weeks same/compara- no loss of (pregnancy) in the ble position; seniority and immediately not less than pension benefits preceding same wages/ 52 week benefits period (parental) 20 weeks 37 weeks; not 4 weeks in the 34 weeks if specified immediately pregnancy preceding leave is 52 week taken period.w.t./ 12 months 17 weeks 6 weeks 4 weeks same/compara- no loss of unavut ble position; seniority (pregnancy) with same/ accrued to wages/benefits date leave commenced; wage/benefit increments as if leave not taken (parental) 12 months 37 weeks not 4 weeks specified Yukon 12 months 17 weeks not 4 weeks same/compara- employment (pregnancy) specified ble position; deemed same wages/ continuous benefits as if leave not taken (parental) 12 months 37 weeks not specified 4 weeks (CCH 5951; 5980) 10,020

6 CCH CAADIA LIMITED T PAGER Username: zulika Date: 29-MAR-06 Time: 8:47 Seq: 6 Free lead: 70D ext lead: 280D Comment: 264 Canadian Master Labour Guide 10,025 Federal Maternity-related Reassignment and Leave At any time from the beginning of the pregnancy to the end of the 24th week following the birth of the child, a pregnant or nursing employee may request that her employer modify her current job functions or reassign her to another job, if because of the pregnancy or nursing, continuing any of her current job functions may pose health risk to her, the foetus or the child. Such a request must be accompanied by a certificate of a qualified medical practitioner, of the employees own choosing, indicating the expected duration of the potential risks and the activities or conditions to avoid in order to eliminate the risk (s. 204, 9846). An employer must examine the request in consultation with the employee and where reasonably practicable, modify the employee s job functions or reassign her. The employee is entitled to remain in her current job position while she waits for the medical certificate and while the request is being examined. However, if the risk posed by continuing any of her job functions so requires, she is entitled to and must be granted a leave of absence with pay at her regular wage rate until the employer either modifies the job functions, reassigns her or informs her in writing that it is not reasonably practicable to modify her job functions or reassign her (ss. 132, 9769 and 205, 9847). Where an employee s job functions are modified or she is reassigned, the employee is deemed to continue to hold the job she had at the time she made the request for modification or reassignment and she must continue to receive the wages and benefits that are attached to that job (s. 205, 9847). Where the employer concludes that modification of job functions or reassignment is not reasonably practicable, the employer must so inform the employee in writing. An employee who is so informed, is entitled to and must be granted, a leave of absence for the duration of the risk as set out in the medical certificate. The onus is on the employer to prove that a modification of the job functions or reassignment that would avoid the activities or conditions set out in the medical certificate is not reasonably practicable (s. 205, 9847). At any time from the beginning of the pregnancy to the end of the 24th week following the birth of the child, a pregnant or nursing employee is entitled to and must be granted, leave of absence if such a request is accompanied by a certificate of a qualified medical practitioner, of the employees own choosing, indicating (a) that she is unable to work by reason of the pregnancy or nursing and (b) the length of that inability (s , 9848). 10,025

7 CCH CAADIA LIMITED T PAGER Username: zulika Date: 29-MAR-06 Time: 8:47 Seq: 7 Free lead: 20D ext lead: 220D Comment: Leaves of Absence 265 An employee whose job functions have been modified, who has been reassigned or who is on leave of absence must give her employer at least two weeks notice in writing of any change in the duration of the risk as set out on the medical certificate unless there is a valid reason why that notice cannot be given, and the notice must be accompanied by a new medical certificate (s , 9849). Maternity Leave Every employee who has completed six consecutive months of continuous employment with an employer is entitled to, and must be granted, a leave of absence for pregnancy upon presentation of a medical certificate (s. 206, 9850) and a written application submitted at least four weeks before such absence is to commence (s. 207, 9852). The period of maternity leave shall consist of a period not exceeding 17 weeks. Maternity leave shall begin no earlier than 11 weeks before the anticipated date of delivery set out in the medical certificate and shall terminate no later than 17 weeks following the actual date of confinement. The Code also provides that where an employee is unable to perform an essential function of her job and no appropriate alternative job is available, the employer may require the pregnant employee to take a leave of absence only for such time as she is unable to perform that essential function. It is up to the employer to prove that the employee is unable to perform an essential job function (s. 208, 9853). However, the employee s right to request and be given a job reassignment where reasonably practicable, takes precedence over the employer s right to require the employee to take a leave of absence (s , 9854). During the period of maternity leave, if the employee requests in writing, the employer shall in writing inform the employee of every employment promotion or training opportunity that arises during the leave of absence for which the employee is qualified (s. 209, 9855). At the expiration of the leave the employee shall be reinstated to the position held at the commencement of the leave or where this is not possible to a comparable position with the same wages and benefits and in the same location (s , 9856). The pension, health, disability, and seniority benefits of an employee who takes maternity leave shall accumulate during the entire period of the leave and to that end an employer is required to continue the payment of contributions toward employee benefit schemes while the employee is on maternity leave. If the employee fails to pay any employee contributions required by the scheme, the employer s obligation ceases (s , 9857). o matter what the provisions of any income replacement plan or any insurance plan in force at the workplace, an employee who takes a pregnancy-related leave of absence, is entitled to benefits under the plan on the same terms as any employee 10,025

8 CCH CAADIA LIMITED T PAGER Username: zulika Date: 29-MAR-06 Time: 8:47 Seq: 8 Free lead: 10D ext lead: 110D Comment: 266 Canadian Master Labour Guide who is absent from work for health-related reasons and entitled to benefits (s , 9858). o employer shall dismiss, suspend, lay off, demote, or discipline an employee because she has applied for maternity leave and no employer shall take into account the intention to take maternity leave when making any decision to promote or train the employee (s , 9860). Regulations may be issued specifying (a) the absences from employment deemed not to have interrupted continuous service; (b) what does or does not constitute an essential function of a job; and (c) what does not constitute a valid reason for not reinstating an employee to the position held at the commencement of the leave (s , 9861). For the purpose of determining whether an employee has completed six consecutive months of continuous employment, if any federal work, undertaking or business is transferred from one employer to another, an employee s employment is considered to be continuous (s , 9862). Parental Leave The Canada Labour Code provides that every employee who has completed six months of continuous service with an employer is entitled to a leave of absence up to a maximum of 37 weeks in the year following either (a) the day the child is born, or (b) the day the child comes into the employee s actual care and custody. Either one parent may take all of the parental leave or both parents may share the parental leave. In either case, the total parental leave cannot exceed 37 weeks. The total aggregate amount of maternity and parental leave that may be taken by one or two employees in relation to the same birth or adoption is 52 weeks (s , 9851a). Parental leave may only be taken during the 52-week period beginning (1) with respect to a newborn child, at the option of the employee, on the day on which the child was born or came into the care of the employee and (2) with respect to an adopted child, on the day the child came into the care of the employee (s , 9851). The required notice of intention to take parental leave, the requirement regarding reinstatement and continuation of accrual of benefits, and the prohibition against dismissal because of the leave are the same as is set out under Maternity Leave above. In Canadian Airline Flight Attendants Association v. Pacific Western Airlines Ltd. flight attendants required to take maternity leave pursuant to the collective agreement, as opposed to the maternity leave benefits provided by the Canada Labour Code, appealed a decision holding that they were entitled to the most favourable benefits but not those preferred. The Court dismissed the appeal and said that the Code 10,025

9 CCH CAADIA LIMITED T PAGER Username: zulika Date: 29-MAR-06 Time: 8:47 Seq: 9 Free lead: 20D ext lead: 110D Comment: Leaves of Absence 267 does not limit the employer s right to enforce maternity leave but rather ensures that benefits provided are at least as favourable as those provided by the Code. The employee is not entitled to work until the date of confinement as the Code does not provide entitlement to continue working but to a leave of absence. The right of an employee to continue working is limited by her ability to perform and if, because of her condition, she is unable to perform her job, maternity leave may be enforced without being in violation of the Code. For the purpose of determining whether an employee has completed six consecutive months of continuous employment, if any federal work, undertaking or business is transferred from one employer to another, an employee s employment is considered to be continuous (s , 9862). (CCH 5991; 5992) 10,030 Alberta Maternity Leave The Employment Standards Code states that a pregnant employee who has worked for an employer for at least 52 weeks is entitled to maternity leave without pay (s. 45, 27,945). It is important to note that if a business is sold, leased, transferred or merged, or continues to operate under a receiver or receiver-manager, the employment of the employees of the business is considered to be continuous. As such, entitlement to maternity leave is based on the length of time an employee has worked for the business, not for the current owner (s. 5, 27,905). A pregnant employee is entitled to maternity leave consisting of 15 weeks commencing at any time during the 12 weeks immediately preceding the estimated date of delivery (s. 46(1), 27,946). The maternity leave period is to include at least six weeks immediately following the actual date of delivery, unless the employer and employee agree otherwise upon the provision of a medical certificate by the employee (s. 46(2), 27,946). Date of delivery is defined as the date the child is born or the pregnancy terminates (s. 1(g), 27,901). The employer must be given at least six weeks written notice of the day the employee plans to take her maternity leave. If the employer so requests she must also provide a medical certificate certifying that she is pregnant and stating the estimated date of delivery (s. 47(1), 27,947). A pregnant employee is entitled to start maternity leave on the date specified in the notice given to the employer (s. 47(2), 27,947). If an employee entitled to maternity leave fails to give the required notice she is still entitled to take the leave, but within two weeks after she ceases to work she must provide a medical certificate that indicates she 10,030

10 CCH CAADIA LIMITED T PAGER Username: zulika Date: 29-MAR-06 Time: 8:47 Seq: 10 Free lead: 10D ext lead: 220D Comment: 268 Canadian Master Labour Guide cannot work because of the medical condition from her pregnancy and give the estimated or actual date of delivery (s. 48, 27,948). During the 12 weeks immediately before the estimated date of delivery, if pregnancy interferes with the performance of an employee s work, the employer may require the employee to begin maternity leave by way of a written notice (s. 49, 27,949). An employee who wishes to resume work after maternity or parental leave must give the employer at least four weeks written notice of the day on which the employee intends to resume work and, in any event, not later than 4 weeks before the end of the leave period or 4 weeks before the date specified as the end of the leave period, whichever is earlier (s. 53(1), 27,953). If the employee does not wish to return to work upon the expiry of the leave, four weeks written notice to this effect must also be provided (s. 53(8), 27,953). Once four weeks have passed from the receipt of notice of intention to return, the employer must reinstate the employee in the position occupied when the leave commenced or provide the employee with alternative work of a comparable nature. Upon reinstatement, the employee must receive not less than the earnings and benefits that had accrued to that employee when the leave started (s. 53(7), 27,953). If an employee fails to provide 4 weeks written notice of the intention to return, or if the employee fails to return to work on the date specified in the notice, the employee is not entitled to resume work unless the failure to return to work resulted from unforeseeable or unpreventable circumstances (s. 53(6), 27,953). If the employer s business, undertaking or activity has been suspended or discontinued in whole or in part during the leave, and the employer has not resumed operations at the time when the leave ends, the employer must, if the operation is subsequently resumed within 12 months following the end of the leave, reinstate the employee in the position occupied at the time the leave started, at not less than the earnings and other benefits that had accrued to the employee, or provide the employee with alternative work in accordance with an established seniority system or practice of the employer in force at the time the leave started, with no loss of seniority or other benefits accrued to the employee (s. 53.1, 27,953a). Employers may not terminate the employment of employees who have started their maternity leave or who are entitled to or have started parental leave. or may an employer lay such employees off (s. 52(1), 27,952). This prohibition does not apply, however, if an employer suspends or discontinues, in whole or in part, the business, undertaking or other activity in which the employee is employed. Where such a suspension or discontinuation has occurred, the employer continues to be 10,030

11 CCH CAADIA LIMITED T PAGER Username: zulika Date: 29-MAR-06 Time: 8:47 Seq: 11 Free lead: 10D ext lead: 700D Comment: Leaves of Absence 269 obliged to reinstate the employee or provide the employee with alternative work. Parental Leave The Employment Standards Code provides that where an employee who has completed at least 52 weeks continuous service with an employer is a birth parent or adoptive parent of a child, the employee is entitled to an unpaid leave of absence up to a maximum of 37 consecutive weeks (s. 50(1), 27,950). It is important to note that if a business is sold, leased, transferred or merged, or continues to operate under a receiver or receiver-manager, the employment of the employees of the business is considered to be continuous, pursuant to the Employment Standards Code. As such, entitlement to adoption leave is based on the length of time an employee has worked for the business, not for the current owner (s. 5, 27,905). A birth mother who takes parental leave must do so immediately following the last day of maternity leave. A birth father or adoptive parent must commence parental leave within 52 weeks of the child s birth or of the placement of the child, respectively (s. 50(1), 27,950). Parental leave may be taken by one parent of the child or shared between two parents (s. 50(2), 27,950). However, if the employees are parents of the same child and have the same employer, the employer is not obligated to grant parental leave to more than one employee at a time (s. 50(3), 27,950). Employees who intend to share parental leave must notify their employers of this intention (s. 51(5), 27,951). An employee intending to take parental leave must submit a written notice of leave to the employer at least six weeks prior to the date the employee will start parental leave unless the medical condition of the birth mother or child makes it impossible to comply or if the date of the child s placement was not foreseeable (s. 51(1), 27,951). When an employee is unable to give written notice of parental leave for one of these reasons, the employee must, as soon as possible, give written notice to the employer of the date the employee will start or has started parental leave (s. 51(2), 27,951). An employee is entitled to start parental leave on the date specified in the notice given to the employer (s. 51(3), 27,951). A pregnant employee who gives written notice of maternity leave, above, need not give further notice of parental leave unless her notice specifically provides that it is not notice of parental leave (s. 51(4), 27,951). The requirements regarding reinstatement and continuation of accrued benefits and the prohibition against dismissal because of leave are the same as those set out above under maternity leave. (CCH 6002) 10,030

12 CCH CAADIA LIMITED T PAGER Username: zulika Date: 29-MAR-06 Time: 8:47 Seq: 12 Free lead: 70D ext lead: 110D Comment: 270 Canadian Master Labour Guide 10,035 British Columbia Maternity Leave The Employment Standards Act provides that an employee, upon her written request for maternity leave, is entitled to a leave of absence without pay for a period of seventeen consecutive weeks or a shorter period the employee requests, to commence no earlier than eleven weeks before the expected date of birth and no later than the actual birth date. Maternity leave ends no earlier than six weeks after the actual birth date unless the employee requests a shorter period, and no later than 17 weeks after the actual birth date. If an employee requests leave after the birth of a child or the termination of a pregnancy, she is entitled to up to six weeks of unpaid leave beginning on the date of the birth or of the termination of the pregnancy (s. 50, 39,330). The employee must, if so requested, provide her employer with a medical certificate specifying the probable date of the birth of the child, the actual birth date, or the date of the termination of pregnancy, depending on the case. She must also submit a written application at least four weeks before the date on which the leave is to commence (s. 50, 39,330). If the employee desires a shortened leave, this request must be given to the employer at least one week before the employee returns to work and there must also be, if the employer requests it, a medical certificate stating that the employee is able to resume work (s. 50(5), 39,330). The employee is entitled to a six-week extension of her leave if she is unable to return to work because of reasons related to the birth or termination of pregnancy as verified in a medical certificate (s. 50(3), 39,330). If an employee takes maternity leave, the employer may not terminate the employee s employment during the leave, or change a condition of employment without the employee s written consent. As soon as the leave ends, the employer must place the employee in the position held before the leave commenced, or in a comparable position. If the employer s operations are suspended or discontinued when the leave ends, the employer must, subject to the seniority provisions in a collective agreement, place the employee in her previous position or a comparable position as soon as operations are resumed (s. 54, 39,334). The services of an employee on maternity leave are deemed to be continuous for calculating vacation entitlements, notice of termination, and employee benefits, unless the employee has, without the employer s consent, taken a longer leave than is provided under the Act (s. 56, 39,336). Where the employer bears the total cost of a benefit plan, or the employee chooses to continue to pay her share of the cost of a plan, the 10,035

13 CCH CAADIA LIMITED T PAGER Username: zulika Date: 29-MAR-06 Time: 8:47 Seq: 13 Free lead: 180D ext lead: 220D Comment: Leaves of Absence 271 employer must continue to contribute to benefit plans while an employee is on leave. When she resumes work after the maternity leave expires, the employee is entitled to all the wage increments and benefits to which she would have been entitled had the leave not been taken (s. 56, 39,336). The Employment Standards Regulation provides that the Act does not apply to employees who are practising members of certain professions, such as architects, lawyers and accountants (Reg. s. 31, 39,531). Specifically exempted from the leave of absence provisions of the Act are student nurses, and auxiliary or volunteer firefighters (Reg. s. 33, 39,533). or does the Act apply to students employed in work study programs, sitters, participants in government incentive programs, newspaper carriers, and persons working on job creation programs under the Employment Insurance Act (Reg. s. 32, 39,532). Parental Leave The Employment Standards Act provides that every employee who becomes a natural mother or father of a child or adopts a child is entitled to unpaid parental leave of up to 35 or 37 consecutive weeks. For birth mothers who also take maternity leave, the maximum entitlement to parental leave is 35 weeks, beginning immediately after the end of maternity leave unless the employer and employee agree otherwise. For birth mothers who do not take maternity leave, birth fathers, and for an adopting parent, maximum parental leave is 37 weeks. For these birth mothers and for birth fathers the leave begins after the child s birth and within 52 weeks after the birth. For adopting parents the leave begins within 52 weeks after the child is placed with the parent. If the child has a physical, psychological or emotional condition requiring an additional period of parental leave, the employee is entitled to up to five additional weeks of unpaid leave, beginning immediately after the end of the original leave (s.51, 39,331). If the child has a physical, psychological or emotional condition requiring an additional period of parental care, the employee is entitled to up to 5 additional consecutive weeks of unpaid leave, beginning immediately after the end of parental leave (s. 51(2), 39,331). An employee s combined maternity and parental leave is limited to 52 weeks, plus any extensions to which she is entitled under the Act, such as the 5-week leave entitlement discussed above (ss. 51(1) and 51(4), 39,331). An employee who intends to take parental leave must request it in writing, at least four weeks prior to the proposed commencement of the leave. As well, if the employer requests it, the employee must provide the 10,035

14 CCH CAADIA LIMITED T PAGER Username: zulika Date: 29-MAR-06 Time: 8:47 Seq: 14 Free lead: 20D ext lead: 110D Comment: 272 Canadian Master Labour Guide employer with a medical certificate or other evidence of the employee s entitlement to leave (s. 51, 39,331). If an employee takes parental leave, the employer may not terminate the employee s employment during the leave, or change a condition of employment without the employee s written consent. As soon as the leave ends, the employer must place the employee in the position held before the leave commenced, or in a comparable position. If the employer s operations are suspended or discontinued when the leave ends, the employer must, subject to the seniority provisions in a collective agreement, place the employee in his or her previous position or a comparable position as soon as operations are resumed (s. 54, 39,334). The provisions relating to seniority, benefits, and reinstatement on the expiration of the leave are the same as those covering pregnancy leave. The exceptions to these provisions are the same as those for maternity leave, detailed above. (CCH 6011; 6012) 10,040 Manitoba Maternity Leave An employee who has been employed by the same employer for at least seven consecutive months (s. 53, 40,653) is eligible of a maternity leave up to 17 weeks (s. 54, 40,654). If the date of delivery of the child occurs after the date estimated in the medical certificate obtained by the mother, the mother is additionally entitled to a period of time equal to the time between the estimated date and the date of delivery. Maternity leave must begin no earlier than 17 weeks before the estimated date of delivery and must end no later than 17 weeks after the actual date of delivery (s. 54(2), 40,654). Employees who are eligible for maternity leave must, as soon as it is practicable, provide the employer with a medical certificate giving the estimated date of delivery. They must also give the employer at least four weeks written notice of the date they will start their maternity leave (s. 54(3), 40,654). An employee who is eligible for maternity leave, but who fails to give notice before leaving employment, is still entitled to maternity leave if, within two weeks of leaving work, she gives notice and provides her employer with a medical certificate giving the date of delivery or the estimated date of delivery, and stating the period or periods of time within the 17 weeks before the date of delivery or estimated delivery date that the normal duties of employment could not be performed because of a medical condition arising from the pregnancy 10,040

15 CCH CAADIA LIMITED T PAGER Username: zulika Date: 29-MAR-06 Time: 8:47 Seq: 15 Free lead: 70D ext lead: 110D Comment: Leaves of Absence 273 (s. 55, 40,655). The maternity leave of such an employee will consist of the time, as described in the medical certificate, that she is unable to work because of her medical condition, plus the difference between that time and the time she would receive if she had given notice in the standard fashion. An employee who does not give notice at all is still entitled to a maternity leave not exceeding that of an employee who does give notice (s. 56, 40,656). Maternity leave ends 17 weeks after the date of delivery (s. 57, 40,657). However, if the date of delivery of the child occurs after the date estimated in the medical certificate obtained by the mother, the mother is additionally entitled to a period of time equal to the time between the estimated date and the date of delivery. (s. 57.1, 40,657a). An employee may end her maternity leave earlier than set out in her notice by giving her employer written notice at least two weeks or one pay period, whichever is longer, before the day she wishes to end the leave (s. 57.1, 40,657a). Employers may not layoff or terminate the employment of an employee who is eligible for maternity leave solely because she is pregnant, gives notice of her intent to take maternity leave or takes leave (s. 60, 40,660). Following her leave, she must be reinstated, if she wishes, to the position she occupied when her leave began, or a comparable position, with at least the wages and benefits she was earning immediately before the leave began (s. 60, 40,660). Her employment is deemed continuous for the purpose of pension and other benefits. An employee who has been unjustly laid off or terminated under this provision may file a complaint with an employment standards officer within six months of the lay off or termination (s. 60(5), 40,660). If the employee is wrongly laid off or terminated, the officer may order the employer to pay compensation to the Director of Employment Standards for any loss the employee incurred as a result of the contravention, or to reinstate the employee, or both (s. 96.1(1), 40,696a). If such an order is made, the employer is obligated to pay administrative costs of $100, or 10 per cent of any compensation ordered, whichever is more, to a maximum of $1,000 (s. 96.1(2), 40,696a). The maximum for recovery of unpaid wages, set out in s. 96(2), 40,696, does not apply to a compensation order made under these provisions (s. 96.1(4), 40,696a). Anyone named in such an order may request the Director of Employment Standards to refer the matter to the Manitoba Labour Board (s. 110(1), 40,710). The request must be made within 30 days after the order is served on the person (s. 110(1.1), 40,710). These requirements are minimum requirements only: any enactment, agreement, common law right or custom that provides the employee with entitlements equal to or greater than those provided by the Code is 10,040

16 CCH CAADIA LIMITED T PAGER Username: zulika Date: 29-MAR-06 Time: 8:47 Seq: 16 Free lead: 120D ext lead: 220D Comment: 274 Canadian Master Labour Guide binding on the employer, but any agreement, enactment, common law right or custom that provides entitlements lesser than those specified under the Code is overridden by the Code (s. 3, 40,603). The fact that the employee agreed to the lesser entitlement is no defence to a prosecution or proceeding under the Code (s. 4, 40,604). When the business or part of the business of an employer is disposed of, such as by sale, lease, transfer or merger such that the control, direction or management of the business is given to another person, including a receiver, the employment of an employee is deemed to be continuous and uninterrupted (s. 5, 40,605). Thus, the rights of employees to take a leave of absence are preserved as if there had been no interruption in the employment of the employees. Pursuant to the Minimum Wages and Working Conditions Regulation, the maternity and parental leave provisions of the Code do not apply to volunteers, beneficiaries under a rehabilitation plan or project, or persons working in training or work experience programs under government or school board authority, who do not receive wages (Reg. s. 2, 40,802); or to farmers, fishers, and horticulturalists (Reg. s. 3, 40,803). Parental Leave Employees who have been employed by the same employer for at least seven consecutive months and who either adopt a child under the laws of Manitoba, or who become natural parents of a child are entitled to up to 37 weeks of parental leave (s. 58, 40,658). To be eligible, they must provide written notice to the employer of the date on which they intend to begin their leave at least four weeks before the leave is to begin. If they fail to provide such notice, their leave entitlement is reduced by the number of days by which the notice given falls short of four weeks. Parental leave must commence not later than the first anniversary of the date on which the child is born or comes into the care and custody of the employee (s. 58, 40,658). If an employee is taking both maternity and parental leave, the leaves must be continuous, unless the employer and the employer agree otherwise, or a collective agreement provides otherwise (s. 59, 40,659). Parental leave ends 37 weeks after it began. However, if the employee gives written notice to the employer, at least four weeks before the day specified in the notice as the day on which the employee intends to begin the leave, parental leave ends 37 weeks after it began less the number of days so provided (s. 59.1, 40,659a). An employee may end parental leave earlier than set out in his or her notice by giving his or her employer written notice at least two weeks or 10,040

17 CCH CAADIA LIMITED T PAGER Username: zulika Date: 29-MAR-06 Time: 8:47 Seq: 17 Free lead: 240D ext lead: 490D Comment: Leaves of Absence 275 one pay period, whichever is longer, before the day he or she wishes to end the leave (s. 59.1, 40,659a). The provisions regarding reinstatement on expiration of leave, continuous employment, and the prohibition against dismissal on the grounds of application for leave are the same as those covering maternity leave (see above). As well, the persons excluded from coverage are the same as those listed above. (CCH 6021; 6022) 10,045 ew Brunswick Maternity Leave The Employment Standards Act provides that pregnant employees are entitled to a period of maternity leave without pay. The employee must provide her employer with a medical certificate stating that the employee is pregnant and specifying the estimated date of delivery. An employee who intends to take maternity leave must advise her employer of this intention four months before the projected date of delivery and give her employer two weeks notice of the commencement date of the leave (s. 43, 46,643). The period of maternity leave shall consist of a period not exceeding 17 weeks. Maternity leave shall begin no earlier than 11 weeks before the estimated delivery date set out in the medical certificate and end no later than 17 weeks following the actual date of delivery (s. 43, 46,643). However, where the duties of the job cannot reasonably be carried out by the pregnant employee or the employee s work performance is being materially affected by the pregnancy, the employer may require the employee to commence her maternity leave earlier (s. 43, 46,643). At the end of the maternity leave if the employee reports for work the employer must reinstate her in the position she held at the time her leave began or in an equivalent position with the same wages and with no loss of seniority or benefits accrued up to the commencement of the leave (s. 44, 46,644). The Act also provides that seniority continues to accrue during the leave at the same rate that seniority would have been earned had the leave not been taken (s , 46,644d) and that the employee will be deemed to have been continuously employed with the same employer during the leave (s (2), 46,644d). The employer is prohibited from dismissing, laying off, suspending, or refusing to employ an employee or person solely on grounds arising from the fact of pregnancy (s. 42, 46,642). 10,045

18 CCH CAADIA LIMITED T PAGER Username: zulika Date: 29-MAR-06 Time: 8:47 Seq: 18 Free lead: 600D ext lead: 700D Comment: 276 Canadian Master Labour Guide Child Care Leave The Employment Standards Act states that an employee who becomes the father or mother of a newborn or adopted child, is entitled to child care leave without pay of up to 37 weeks. If both parents are employees the child care leave may be taken by either employee or shared by the employees. Child is defined to mean a person under 19 years of age (ss (1), 44.02(2), 46,644b). Child care leave may not begin before the child comes into the care and custody of the employee and must end no later than 52 weeks after the child comes into the care and custody of the child (s (8), 46,644b). The child care leave of a mother who has taken maternity leave must begin when the maternity leave ends unless the employer and the employee agree otherwise (s (10)). However, where the child is hospitalized at the time the maternity leave expires, child care leave may be postponed until the child comes into the care and custody of the employee (s (11)). A natural parent who intends to take child care leave must provide the employer with a medical certificate stating the expected or actual date of birth and, in the absence of an emergency, four weeks written notice of the commencement date and length of the leave (s (3), 46,644b). An adoptive parent who intends to take child care leave must provide the employer with written notice of such intention four months before the anticipated day on which will be placed with the employee or in the event of an emergency as soon as possible before the placement of the child. The employee must also provide the employer with proof of the actual adoption and notify the employer of the commencement date and length of the leave (s (4), 46,644b). The provisions relating to seniority benefits and reinstatement on the expiration of child care leave are the same as those covering maternity leave (s (12), 46,644b). The maximum combined child care leave that may be taken by two employees with respect to the same birth or adoption is 37 weeks (s (12.1), 46,644b) and the maximum combined maternity and child care leave that can be taken by one or two employees is 52 weeks (s (12.2), 46,644b). 10,045 (CCH 6031; 6032)

19 CCH CAADIA LIMITED T PAGER Username: zulika Date: 29-MAR-06 Time: 8:47 Seq: 19 Free lead: 10D ext lead: 110D Comment: Leaves of Absence ,050 ewfoundland and Labrador Pregnancy Leave Under the Labour Standards Act a pregnant employee is entitled to a 17-week unpaid leave of absence if she has been employed by the same employer for a period of 20 consecutive weeks immediately before the birth date (s. 40(1), 51,300; s. 42(1), 51,302). As such, an employee may begin her leave no earlier than 17 weeks prior to the expected birth date. The pregnant employee is required to provide her employer with at least two weeks written notice of the date her leave is to begin, and a certificate from a medical practitioner stating the estimated birth date (ss. 40(2) and 40(3), 51,300). It is important to note that when a business is sold, transferred or assigned to another employer, any employees who remain employed are considered to have had continuous employment. As such, entitlement to pregnancy leave is based upon the length of time an employee has worked for the business, not for the current owner (s. 6, 51,266). An employee who stops working as a result of complications caused by her pregnancy or because of a birth, still-birth or miscarriage that happens earlier than the expected birth date is not required to provide the two-week written notice, or a certificate stating the estimated birth date. However, within two weeks of stopping work, the employee must provide written notice of the date the pregnancy leave is to begin or began and a certificate from a medical practitioner stating either (a) the fact that the employee is unable to perform her work due to complications arising out of the pregnancy and the expected birth date, or (b) the date of the birth, still-birth or miscarriage, and the date that the employee was expected to give birth (s. 41, 51,301). Pregnancy leave ends after 17 weeks where an employee is entitled to take parental leave. Where an employee is not entitled to take parental leave, her pregnancy leave ends either 17 weeks after it began or 6 weeks after the birth, still-birth or miscarriage, whichever is later (ss. 42(1) and 42(2), 51,302). An employee may end her pregnancy leave before the day provided for as long as she provides her employer with at least 4 weeks written notice of the day she intends to resume work (s. 42(3), 51,302). As well, an employee who does not intend to take parental leave once her pregnancy leave is finished must notify her employer at least 4 weeks before the date on which she intends to return to work (s. 42(4), 51,302). An employee who has given notice to begin pregnancy leave may change the notice to an earlier date by giving the employer 2 weeks written notice prior to the earlier date or to a later date by giving the 10,050

20 CCH CAADIA LIMITED T PAGER Username: zulika Date: 29-MAR-06 Time: 8:47 Seq: 20 Free lead: 180D ext lead: 220D Comment: 278 Canadian Master Labour Guide employer 2 weeks written notice before the date on which the leave was to begin. An employee who has given notice to end pregnancy leave may change the notice to an earlier date by giving the employer 4 weeks written notice before the earlier date or to a later date by giving the employer 4 weeks written notice before the date on which the leave was to end (s. 43.6, 51,303f). Once pregnancy leave is completed the employee must be reinstated with the same or comparable wage, duties, benefits and position as she held before the leave commenced (s. 43.7, 51,303g). Unless there is a mutual employer-employee agreement, the period of pregnancy leave does not count towards the accumulation of rights, benefits and privileges. However, for the purposes of the Act, the continuity of employment is deemed not to have been broken by the absence (s. 43.8, 51,303h). An employer may not dismiss or give notice of dismissal to an employee for the reason only that (a) she informs the employer that she is pregnant, (b) she informs the employer that she intends to take pregnancy leave, or (c) she is absent by reason of pregnancy leave as permitted by the Act. Where an employee is dismissed for any of these reasons, the onus of proving that the dismissal was unrelated to pregnancy leave rests with the employer (s. 43.9, 51,303i). Parental Leave An employee who has been employed by the same employer for 20 consecutive weeks, and is the parent of a child, is entitled to an unpaid leave of absence of 35 weeks upon the birth of a child or the coming into care and custody of a child for the first time (s. 43.3(1), 51,303c;s. 43.5, 51,303e). It is important to note that when a business is sold, transferred or assigned to another employer, any employees who remain employed are considered to have had continuous employment. As such, entitlement to parental leave is based upon the length of time an employee has worked for the business, not for the current owner (s. 6, 51,266). Parental leave must begin within 35 weeks of the birth or coming into care and custody of the child except in the case of a female employee who has also taken pregnancy leave, in which case parental leave begins once pregnancy leave ends, provided that the child has come into the care and custody of the mother at that point (ss. 43.3(2)and 43.3(3), 51,303c). An employee is required to provide his or her employer with two weeks written notice of the day the parental leave is to begin except where the child comes into the care and custody of the parent sooner than expected. In this case, the parental leave begins on the day the employee stopped working, and the employee is required to provide written notice 10,050