Extended Parental Leave in Atlantic Canada: What to Expect When Your Employee is Expecting

Every parent knows that a lot can happen in 18 months. Many employers agree. The federal government’s extension of employment insurance parental benefits to 18 months took effect on December 3, 2017. In March 2018, two Atlantic Canadian provinces amended their employment standards laws to extend the right to parental leave to, when combined with maternity or pregnancy leave, a maximum of 18 months. Many employers are wondering what to expect as a result.

It remains to be seen how many employees actually take extended parental leave; though theoretically attractive to many, it’s unlikely a practical option for all. But regardless how many actually take it, these changes warrant a review (or creation) of workplace parental leave policies. Here’s what Atlantic Canadian employers can expect as a result of extended employment insurance parental benefits and parental leaves, and tips to help them prepare.

What Employers Can Expect

Although an extended parental leave of 18 months appears attractive to many employees (particularly those in the sandwich generation) in theory, it remains to be seen just how many employees will find it a practical option. And there are two main reasons it might not be:

No Increased Benefit Money. The duration of the time over which parents can choose to receive EI benefits is now extended but the actual benefit amount isn’t: the option is to spread the same benefits over a longer period of time. Parents receive a maximum of 50 weeks of EI (15 for maternity and 35 for parental) of 55% of the employee’s average insurable weekly earnings up to $547/week. The extended parental leave gives parent the option to extend the same benefits over 18 months – but at 33% of the average insurance weekly earnings up to $328/week. This likely reduces significantly the number of employees who are able (or willing) to extend their leave.

No Universal Legal Right to Extended Leave. The availability of extended parental benefits isn’t the same as the availability of extended parental leave. Under the federal law, all employees now have the right to extend their parental benefits over 18 months, and under federal law (the Canada Labour Code), employees in federally-related workplaces have the right to up to 63 weeks of extended parental leave (with some restrictions) that, when combined with maternity leave of up to 17 weeks, totals 80 weeks (or roughly 18 months). But under provincial laws, not all employees in provincially-regulated workplaces have the right to extend their total parental leave from work to 18 months. In Atlantic Canada:

• New Brunswick. Effective March 18, 2018, N.B. amended its Employment Standards Act to increase the parental leave period to a maximum of 62 weeks (roughly 14 months) and the total leave, when combined with maternity leave (which itself is set at a maximum of 17 weeks) to a maximum of 78 weeks (or roughly 18 months).
  
• Newfoundland & Labrador. Older than the N.B. extension by mere days, and without any fanfare, effective March 12, 2018, N.L. amended the N.L. Labour Standards Act to increase parental leave to 61 weeks (roughly 14 months); this, combined with a maximum 17 weeks of pregnancy leave, equates to a total potential leave of 78 weeks (or roughly 18 months).
  
  
• Nova Scotia. Under the N.S. Labour Standards Code, the maximum combined maternity and parental leave remains at a total of 52 weeks (12 months). And there doesn’t appear to be anything in the works to change this.
  
• Prince Edward Island. Similarly, P.E.I.’s Employment Standards Act still limits the combined maternity and parental leave to 52 weeks (12 months) and there doesn’t appear to be any sign of change.
  
  

Tips to Prepare

Regardless how many employees actually take it, extended parental benefits and, in some workplaces parental leave, warrants a review and (if necessary) revision or, if none exists, creation of workplace parental leave policies. The steps to properly create and implement new, or change existing, policies that are effective and enforceable apply equally to a parental leave policy. However, all policies are nuanced depending on their subject-matter; the review or development of a parental leave policy should include:

Extended leave availability. In those provinces in which employment standards laws don’t grant a right to extended parental leave to match up with the 18 months of employment insurance parental benefits, the employer can still agree to allow it. If this is the case, the policy should state it is as well as set out any applicable terms, conditions and processes for both application and evaluation.

Top up programs. If the employer offers one, an extended leave could result in the employer paying out a lot more money than it initially intended depending on the policy wording. Review the policy with an eye to the financial impact of the wording to determine the effect of an extended parental leave on the total top-up paid under the program, and if necessary consider revising it to limit the payout (for example by setting a maximum duration or capping the payout amount).

No Discrimination. For some employers, 18 months could seem like a daunting amount of time for an employee to be out of the workplace. As a result, the employer could, even inadvertently, create an atmosphere that effectively discourages employees from taking the leave despite their legal (or contractual) right to do so. Or an employee who takes a leave could, rightly or wrongly, feel that any negative workplace issue they experience before or after a leave is because they took it. Accordingly, raising the length of parental leave to 18 months could also raise the risk of a human rights complaint against the employer. For this reason, it’s prudent for employers to restate and reinforce their commitment to a discrimination-free workplace in their parental leave policy. Doing so may not only help the employer defend a human rights complaint, but serves as a reminder to managers and supervisors not to discriminate against employees who take their leave. All Canadian human rights laws prohibit employers from discriminating in employment based on a ground protected in the applicable law; this prohibition extends to reprisal against an employee for taking a leave to which they are entitled, both during or after their return. Depending on the applicable human rights law and the circumstances (such as whether the allegation is by a mother or father, or the parent’s sexuality), a discrimination complaint relating to parental leave could be based on sex, gender, family status, sexual harassment, or even disability (where, for example, a mother suffers physical or mental effects of pregnancy or childbirth). In addition to human rights laws, the employment standards laws of some jurisdictions expressly prohibit discrimination against an employee based on their application for a leave to which they are entitled under the employment standards law (as, for example, New Brunswick’s Employment Standards Act at section 28).

To discuss this or any other legal issue, contact any member of the Labour & Employment Law Team @ McInnes Cooper. Read more McInnes Cooper Legal Publications and subscribe to receive those relevant to your business.

McInnes Cooper prepared this article for information; it is not legal advice. Consult McInnes Cooper before acting on it. McInnes Cooper excludes all liability for anything contained in or any use of this article. © McInnes Cooper, 2018. All rights reserved.