With the majority of dental office employees being female, every employer dentist will likely encounter pregnancy and parental leave issues at their practice at least once. Here is what every dentist needs to know:
What is Pregnancy Leave?
Pregnancy leave is up to 17 weeks of unpaid time off work which can be taken by any employee (whether full-time, part-time, permanent or contract) who:
- is pregnant;
- is employed by an employer who is covered under the Employment Standards Act, 2000 (the “ESA“); and
- who has started her employment at least 13 weeks before her due date.
Duration of Pregnancy Leave
The earliest a pregnancy leave can be taken is 17 weeks before the due date of the baby. The latest a pregnancy leave can be taken is either the baby’s due date or if the baby is born earlier, then the baby’s birth day. It is up to the employee to decide when she will start her pregnancy leave. The employer cannot make that decision for the employee, even in the event that the employee is off sick due to her pregnancy or if the pregnancy limits the type of work she can do.
Notice Requirements
An employee wishing to take advantage of a pregnancy leave, must give written notice to their employer at least 2 weeks in advance of taking the leave. The employer has a right to request a medical certificate from the employee’s doctor advising of the baby’s due date. In instances where the employee has to stop working before being able to give notice, the employee has 2 weeks after she stops working to give her employer written notice of the day her pregnancy leave began or will begin.
Though these notice requirements are mandated by the ESA, failure to give notice by the employee does not preclude them from taking pregnancy leave.
The employee may or may not give her employer notice of when her pregnancy leave ends. If the employee does not give notice of the end of her pregnancy leave, the employer is to assume she will take the entire 17 weeks of leave
What is Parental Leave?
Parental leave is up to 37 weeks of unpaid time off work that can be taken by any employee (whether full-time, part-time, permanent or contract) who:
- is a parent;
- is employed by an employer who is covered under the Employment Standards Act, 2000 (the “ESA“); and
- was employed for at least 13 weeks before starting the parental leave.
A parent for the purposes of parental leave can be a birth parent, an adoptive parent or a person who is in a permanent relationship with a parent of the child and who plans on treating the child as his/her own, including same-sex couples.
Duration of Parental Leave
For the mother of the baby, parental leave can begin as soon as pregnancy leave ends (with some exceptions). All other parents must begin parental leave no later than 52 weeks after the baby is born or the date the child first came into their care. Birth mothers who take pregnancy leave are entitled to 35 weeks of parental leave and all other parents 37 weeks.
Parental leave must be taken all at one time. The employee cannot return from parental leave early for some time and then go back on parental leave for the unused portion.
Notice Requirements
An employee wishing to take parental leave must give 2 weeks written notice before the start of the parental leave. Retroactive notice may be given in the event that the employee stops working earlier than expected due to the child being born or coming into the employee’s care earlier than expected. As with pregnancy leave, failure by the employee to give notice of a parental leave does not preclude them from being able to take advantage of parental leave.
The employee need not give notice of their return to work from parental leave. In this case, the employer is to assume that the employee will take the full 35 or 37 weeks of leave. An employee cannot take a longer parental leave period than allowed, unless the employer consents.
What Happens During Pregnancy/Parental Leave?
During the time the employee is on leave, they continue to have the same rights as other employees within your practice.
Freedom From Penalty
They have a right to be free from penalty for taking / planning to take / being or becoming eligible to take pregnancy or parental leave. For example, you cannot fire an employee who tells you they are trying to get pregnant because you don’t like the fact that they will be out of commission for at least a year if they get pregnant.
Such actions and reasoning can land you in hot water not only with the Labour Board, but also with the Human Rights Tribunal which is capable of imposing hefty penalties to employers who discriminate against an employee for being or trying to get pregnant.
Continued Benefits
A team member on pregnancy/parental leave continues to have a right to take part in benefits plans such as pension plans, life insurance plans, accidental death plans, extended health plans, dental plans, etc.
What does this mean for those dentist employers who do not have benefits plans, but who provide free dental care to their team members and/or family members? Well, it means that during the employee’s pregnancy/parental leave, they and/or their family members are still be entitled to come in for their free dental work.
Continued Length of Service
The team member who is on a pregnancy/parental leave continues to earn credits toward length of employment, length of service and seniority. Practically speaking, this means that for all intents and purposes, when calculating the time the team member has worked for you, you must also calculate the time during which they were on pregnancy/parental leave.
For example, your dental assistant has worked with you for 5 years and then takes 1 year off for pregnancy/parental leave. Two years after she comes back from pregnancy/parental leave, you want to terminate her employment. For the purposes of calculating termination pay, you must include the time she was on leave in your calculations (5 years + 1 Year + 2 years = 8 years total).
Vacation Time and Vacation Pay
When it comes to vacation, the Ontario Labour Relations Board in Quirk v. Allstate Insurance Company of Canada took the position that an employee on pregnancy/parental leave has vacation time accrue during the time they are on leave (i.e. minimum of 2 weeks every 12 months) BUT because of the wording in the ESA that says employees must be paid a minimum of 4% of wages earned during the period for which the vacation is being given, employees are not entitled to vacation pay for the time of the pregnancy/parental leave because they did not earn wages while on leave.
What Happens After the Pregnancy / Parental Leave Ends?
After the pregnancy/parental leave ends, the employee is entitled to either the same job they had before the leave began OR a comparable job if the employee’s old job no longer exists. The employee must be paid at least as much as they were prior to going on leave.
Employer dentists must be careful terminating employees who are on pregnancy/parental leave or who have just returned from such leave. Doing so will not only expose them to potential complaints to the Labour Board, but also to the Human Rights Tribunal, which can award large sums (in addition to any amounts awarded by the Labour Board) as compensation for injury to dignity, feelings and self-respect to employees who have been discriminated against for having returned from pregnancy/parental leave.
For further guidance and information on employee pregnancy/parental leave or anything else contained in this blog, you can contact DMC. We are your legal dental team. Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.
