Maternity leave and parental leave
Q: Can my employer refuse to grant me maternity leave without pay or parental leave without pay?
A: The Employer has no discretion when it comes to the employee’s right to obtain maternity leave without pay. CAPE’s collective agreements state clearly that an employee who becomes pregnant shall “upon request” be granted maternity leave without pay. The Employer may only require an employee to submit a medical certificate certifying pregnancy before agreeing to grant such leave (article 19.03 of the LoP Agreement; article 21.03 of the EC Agreement; article 21.03 of the TR Agreement). The same holds true for the granting of parental leave (article 19.06 of the LoP Agreement; article 21.06 of the EC Agreement; article 21.06 of the TR Agreement).
Q: How much advance notice do I have to give my employer before I start maternity or parental leave without pay?
A: Unless there is a valid reason why notice cannot be given, the Employer requires at least four weeks advance notice for all types of uninterrupted leave with or without pay to cover an absence from work due to pregnancy or for parental leave (articles 19.03 and 19.06 of the LoP Agreement; articles 21.03 and 21.06 of the EC Agreement; articles 21.03 and 21.06 of the TR Agreement). A single combined request may be submitted to cover both types of leave.
Q: How do I go about submitting my request for leave?
To request parental leave or maternity leave:
- 1. Inform your employer in writing at least four weeks in advance of the expected date of birth or of the initial date of your planned leave.
At the same time, or earlier if possible, if you wish to receive a supplemental allowance:
- 2. Fill out and sign a Supplemental Unemployment Benefit (SUB) agreement form (copies of this form are available from your Human Resources office);
- 3. Apply for a maternity allowance or a parental allowance under the Employment Insurance Act.
Q: When do I have to start maternity leave without pay?
A: CAPE’s collective agreements do not establish a specific start date or duration for maternity leave without pay, but they do state that it should start before, on or after the termination date of pregnancy and end no later than 18 weeks after the termination date of pregnancy, with some notable exceptions such as hospitalization of the newborn child (article 19.03 of the LoP Agreement; article 21.03 of the EC Agreement; article 21.03 of the TR Agreement). For the purposes of maternity allowance eligibility, make sure you have completed six months of continuous employment before the start of your maternity leave (article 19.04(a)(i) of the LoP Agreement; article 21.04(a)(i) of the EC Agreement; article 21.04(a)(i) of the TR Agreement).
Q: Can maternity leave without pay or parental leave without pay be extended if the baby is hospitalized?
A: In cases where a newborn child is hospitalized and you decide to stay at work or return to work, maternity leave without pay may be extended up to a maximum of 18 additional weeks ending not later than 52 weeks after the date of delivery.
In the case of parental leave, the extension shall end not later than 104 weeks after the day on which the child comes into the employee’s care (articles 19.03 and 19.06 of the LoP Agreement; articles 21.03 and 21.06 of the EC Agreement; articles 21.03 and 21.06 of the TR Agreement).
Q: I am planning to be a surrogate mother. Will I be eligible to receive maternity benefits?
A: According to Service Canada, surrogate mothers are entitled to receive maternity benefits from the government. Therefore, an employee who acts as a surrogate mother is eligible for maternity leave without pay.
“It should be noted that in the case of a surrogate pregnancy, it is the surrogate mother who experiences the physical inability to work associated with pregnancy and childbirth and as such is entitled to maternity benefits.”
Q: What are the limits applicable to parental leave without pay?
A: You are entitled to be granted parental leave without pay for a single period of up to 37 consecutive weeks in the 52-week period commencing on the day the child is born. As in the case of maternity leave, if the child is hospitalized and you decide to return to work or stay at work, your 37 weeks of parental leave will be extended accordingly; however, the new end date for the 37-week period shall not extend beyond the 52-week period described previously (i.e., 52 weeks commencing on the date of the child’s birth).
The leave can start any time after the birth or adoption of the child.
The 37 weeks of parental leave without pay can be taken by either the mother or the father, or can be shared by them, even contiguously. However, it should be remembered that the maximum combined maternity and parental allowances payable by the employer shall not exceed 52 weeks (article 21.07(k) of the EC Agreement). (See the FAQ on maternity and parental allowances.)
Notwithstanding the above, at the option of the employee, the parental leave can be taken in two (2) periods of consecutive weeks, to a maximum of thirty-seven (37) weeks commencing on the date of birth of the newborn child.
For the mother, taking into account maternity leave, the maximum duration of parental leave without pay may not exceed the 52-week period commencing on the date of birth of the newborn child or the date upon which the child comes into the employee’s care. However, other types of leave could extend the period of leave beyond this 52-week period (see below).
Q: Can both parents take their parental leave contiguously?
A: In addition to the above rules, one of the parents, independently of the other, may avail himself or herself of the 37 weeks of parental leave without pay and decide when to take this leave, even in the context of a separation (see below). However, such leave without pay must be taken during the 52-week period following the date of birth of the child or the date upon which the child effectively comes into the care of its parents.
Q: When the parents are separated, which of the parents is legally responsible for the care and custody of the newborn or adopted child?
A: Barring a decision to the contrary by the courts, both parents (whether natural or designated in an adoption order or procedure) are jointly responsible by law for the care and custody of a newborn child.
For a child to be a dependent of a parent, the parent must be the principal person responsible for the care of that child. Legally speaking, a newborn child is a dependant of a parent when the child resides with that parent.
Q: Can I combine maternity leave without pay or parental leave without pay with other types of leave?
A: The collective agreements (article 19.03 of the LoP Agreement; article 21.03(e)(i) of the EC Agreement; article 21.03(e)(i) of the TR Agreement) allow an employee to use earned vacation and compensatory leave credits up to and beyond the date that a pregnancy terminates.
In the event of illness, CAPE’s collective agreements specifically allow the use of sick leave credits before the date of termination of the pregnancy for any medical disability related to the pregnancy (article 19.03(e)(ii) of the LoP Agreement; article 21.03(e)(ii) of the EC Agreement; article 21.03(e)(ii) of the TR Agreement).
It is also possible to take up to a maximum of five days of leave with pay for family-related responsibilities, subject to leave credit availability, for needs directly related to the birth or to the adoption of a child (article 19.13(b)(iii) of the LoP Agreement; article 21.12(b)(iv) of the EC Agreement; article 21.12(b)(iii) of the TR Agreement). Note that such leave, if taken by the mother between maternity leave and parental leave, would interrupt the continuous period of maternity and parental leave and thereby eliminate the employee’s entitlement to a parental allowance during the two-week waiting period before receiving Employment Insurance parental benefits. For the mother, the use of such leave for family-related responsibilities to care for a newborn child should strategically precede maternity leave, within the broad framework of the wording of the various clauses pertaining to the care of newborn children. For the father, the use of such leave has no impact on the payment of possible allowances, except in cases where full use is made of parental leave.
In addition, CAPE’s collective agreements include provisions for leave without pay for the care of immediate family members; such leave shall be for a minimum period of three weeks and shall not exceed a total of five years during an employee’s period of employment in the public service. If you decide to avail yourself of this type of leave immediately after your maternity and/or parental leave, you must submit a separate leave application. You should ask the employer to provide you with a full explanation, preferably in writing, of the impact this leave will have on your employee benefits, depending on the duration of the leave. Bear in mind that whenever a given type of leave without pay exceeds a period of 12 months, the employer may fill your position on a permanent basis (See: Treasury Board’s directives on special leave).
Q: Will I continue to accumulate sick leave and annual leave during my maternity or parental leave?
A: When you are on leave without pay, you will not earn leave credits for a given month unless you received pay for at least 10 days (or 75 hours, depending on the wording of the applicable collective agreement) in that month. This means that if you start your leave without pay after 75 hours of work or the paid equivalent (e.g., a combination of paid hours and/or paid leave, such as compensatory leave) in a given month, you will be entitled to your leave sick leave and annual leave credits for that month (article 20.01 of the LoP Agreement; article 22.01 of the EC Agreement; article 20.01 of the TR Agreement). The same reasoning applies for the month in which you return to work.
Depending on the due date for the termination of your pregnancy and the anticipated date of your return to work, it may be to your advantage to plan your departure and return dates so as to maximize the amount of sick leave and annual leave credits you can earn, as well as the bilingualism bonus (see below).
Q: Will I receive my bilingualism bonus during my maternity and/or parental leave?
A: During your maternity/parental leave without pay, you will not be eligible to receive the bilingualism bonus for months in which you received pay for less than 10 days (or 75 hours, depending on the wording of the applicable collective agreement).
Q: What impact will this type of leave have on the calculation of continuous employment and service?
A: To avoid discrimination, the period of maternity/parental leave without pay will be counted in the calculation of "continuous employment" for the purpose of calculating severance pay and as "service" for the purpose of calculating vacation leave. In addition, time spent on such leave will be counted for pay increment purposes (article 19.03(g) of the LoP Agreement; article 21.03(g) of the EC Agreement; article 21.03(g) of the TR Agreement).
Q: Can I buy back the leave period for pension purposes?
A: As is true of all types of leave without pay, you are entitled to buy back the time for pension purposes. If you are interested in doing so, check with your compensation officer when you return from your leave.
Q: Will my insurance coverage remain valid during a leave of absence such as maternity or parental leave without pay?
A: Your insurance coverage should remain valid while you are on a leave of absence. If you are on leave with pay, the required premiums will be withheld from your pay in the usual manner. If you are on leave without pay, however, the required premiums will be withheld from your pay when you return to work after your leave. If your employment should terminate after your leave, you will be required to pay the unpaid premiums.
In theory, premiums will be withheld for a period equal to the duration of your leave. The amount to be paid when you return to work could include your contributions and the employer’s contributions for the period when you were on leave. You will not be required to pay the employer’s share of premiums for the first three months of any period of leave without pay or if your department or agency certifies that the leave was granted for the birth or adoption of a child, provided the leave is taken within the 52 weeks following the date of birth or adoption. We encourage you to check all of the specifics with your compensation officer.
Q: I am currently on an Interchange Canada assignment. Will my maternity leave have any impact on my assignment period?
A: Treasury Board policy stipulates that you can pursue your assignment under this program upon your return from maternity leave without pay.
“Participants that go on extended leave, such as extended sick leave or maternity leave, may have their Interchange Canada assignment temporarily postponed, upon the agreement of the sponsoring and host organizations. The length of the absence will not count toward the total assignment duration. The participant can return to the assignment directly following the extended leave, without waiting two years. The total duration of the assignment before and after the extended leave cannot exceed three years, with the possibility of a two-year extension.”
(Source:Interchange Canada – FAQs)
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