Parental Leave - EI and ESA

Parental EI Benefits - Are the Changes All Good?

You may recall that the Federal Employment Insurance Act is changing December 31.  If your baby is born on or after that date, the parental benefits under EI last as long as 50 weeks.  This means that a mother could take 52 weeks off work and get EI benefits for all but the 2 week waiting period.  There will be a lot of people taking advantage of this new benefit.

That seems like great news for mothers (or fathers) who want to spend more time off work with their new child.  There is a catch.

The Ontario Employment Standards Act has pregnancy and parental leave provisions.  The law forces employers to keep your job for you while you are on leave and protects your pay, benefits and seniority.  The Act provides for a maximum pregnancy/parental leave of 35 weeks.  After that time, there are no provisions to protect an employee's job.

What does this mean?  The way I see it, if the parents take a combined pregnancy/parental leave longer than 35 weeks, they lose their job protection.  The employer does not have to take you back.  If they do take you back, it does not have to be the same job, same pay, or same seniority.

I see some serious results.  Some employers will be informed and ruthless enough to allow employees to commence maternity and parental leave, then send them a letter after 35 weeks, confirming the resignation of the employee.  The employee will be shocked to receive the letter, and even more shocked when they call the Ministry to find out that they have indeed lost their job.

Now new mothers have to face the question:  "Do I take the full leave and hope I have a job, or do I give up valuable time with my infant to preserve my job?"  This is not a question that they should have to be asking themselves.

Of course, you can always have an agreement with your employer that they will re-instate you at the same job, same pay and same seniority.  But do you think all employers will do this?  Even if they do agree, the only way to prove it is a written agreement (which most people won?t do) and even then, it is less effective than having the right protections in the Act.

Unless the Ontario government changes the Employment Standards Act to be consistent with the Federal EI Act, the only way to collect EI and be sure you have a job to return to is by cutting the leave short to 35 weeks.

I have written the Ontario Ministry of Labour to ask if they intend on changing the Act to be consistent with the Federal EI Act.  I have not yet had an answer.  Their web site does not indicate that there are plans to change the Act in this respect.  My MPP?s office has advised me that the Ministry is scrambling to make changes, but I think it will be a miracle if the changes are in place by December 31.

Scrambling to make legislative changes?  How hard is it to propose a bill that changes section 40 of the Act to say thirty-five weeks instead of eighteen weeks ?