Is my job protected while I am on a parental leave?
Question: Is my job protected while I am on a parental leave? What happens to my employment insurance (EI) benefits if my employer downsizes, and terminates my position while I am on leave?
Answer: In general, the parental leave protections are quite strong for employees (and other workers) under Ontario’s ESA and the Human Rights Code. But there are unfortunately some limits.
A parent on mat leave or parental leave has the right to return to their actual position at the end of their leave. If their position has been truly eliminated, then, as an alternative, they have the right to return to a comparable position (e.g., one that is vacant). This is a special statutory right that cannot be taken away.
But if layoffs are made, workers on parental leave may sometimes find themselves lawfully terminated as part of job cuts in the situation illustrated above — when no comparable job exists.
However, there are risks to business who eliminate jobs for folks on parental leave.
For instance, employers may need to show that job cuts were done in a fair and reasonable way, in terms of picking who to eliminate and demonstrating that no comparable positions truly exist.
If a termination is found to be ultimately lawful, it is still, of course, quite harsh for such workers and generally does not reflect well on the employer.
It can be tougher to find new work for those on leave, and when parental leave EI benefits run out, it can be difficult, if not impossible, to get regular EI benefits for unemployment.
(Note: I believe that the EI rules are discriminatory in this regard, on basis of sex and gender, and contrary to Canada’s human rights laws. The EI rules should be changed immediately or overturned.)
If you or someone you know has questions about mat leave or parental leave, or a termination, please feel free to contact me atwjamieson@rossmcbride.com or my direct line: 905-572-5806.
This article was originally published by The Hamilton Spectator.
