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THE QUESTION
Does an employee need to return to work between consecutive maternity leaves to keep their job protection? My wife and I are discussing family planning issues and want to keep her future employment open as an option once we are finished having children (her employer is the only employer of her profession in town). We aren’t concerned about employment insurance because, as I understand it, EI eligibility is separate from the job protection.
THE FIRST ANSWER
Brooke Finkelstein, employment lawyer and workplace investigator, West Coast Workplace Law, Richmond, B.C.
Across Canada, maternity and parental leave entitlements are set out in each province and territory’s employment standards legislation, or in the Canada Labour Code for federally regulated employees. Generally, there is no requirement to return to work between consecutive leaves in order to maintain job protection. What matters is that the employee remains actively employed when the second leave begins and meets any notice requirements under the applicable legislation.
Job protection means that the employee has a legal right to be reinstated at the end of their leave, either to their previous position or to a comparable one. This protection continues through both leaves, provided the employee maintains their employment status and the leaves are taken within the timelines allowed by law.
To help avoid misunderstandings, employees should provide clear written notice before each leave begins. This typically includes the anticipated start date. Most jurisdictions require at least two to six weeks’ advance notice before the leave begins, so employees planning back-to-back leaves should be sure to confirm the applicable timeline and give notice before the next leave starts. While not all jurisdictions require an expected return-to-work date, it is helpful to discuss timelines so the employer has a general sense of when a return might be planned. If those plans change, it is best to provide an update in writing.
Employees should also confirm that their leave falls within the maximum period allowed by the legislation. If more time off is being requested beyond the statutory entitlement, it is important to communicate with the employer about the possibility of an extension to the leave or another arrangement under company policy.
The bottom line is that consecutive leaves are generally permitted without a return to work in between, as long as the employee remains employed and meets the notice and timing requirements. Clear communication and early planning can make the process easier for everyone involved.
THE SECOND ANSWER
Jonquille Pak, founder, JPAK Employment Lawyers, Toronto
Under provincial and federal employment standards legislation, pregnancy and parental leaves (maternity leave) are job-protected leaves. Generally, this means that during a maternity leave, the employee continues to accrue service; they remain eligible to participate in employer group benefits and pension plans; and upon return from a maternity leave, the employer must reinstate the employee to the position they held if it exists, or to a comparable one if it does not exist. Further, an employer cannot discriminate against, penalize or terminate an employee because they take a pregnancy or parental leave.
If your wife becomes pregnant during the first maternity leave and is eligible to take the second maternity leave immediately following the first leave, there is no obligation to return to work. The leaves would be continuous. Her rights during the leave and the reinstatement obligations would continue to be in place through to the end of the consecutive leaves. These protections are automatic and do not require a return to work in between.
On the other hand, if there is a gap in time between the end of the first maternity leave and when she becomes eligible to take the second maternity leave, the employer can expect that she return to work in the interim period if she is fit to do so. In many cases, if an employee does not wish to return between the two leaves, the employer may not require her to come back for a short interval of time. Further, if she is in the situation, she may wish to take advantage of accrued vacation time during this intervening period that may bridge her to the second leave, to dispense with the need to return to active work. Once she takes her second maternity leave, it has all the same job protections as the first one.
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