Maternity leave is a time for new mothers to spend with their newborn and get out of the office. But it can also be stressful if you’re not aware of your rights as an employee while on maternity leave.
The BC Employment Standards Act sets out a number of rights for employees in the province. One of these is maternity leave, which provides mothers with up to 17 weeks of time off from work during their pregnancy and following the birth or adoption of a child.
To help you navigate this period, we have outlined some information below that will help you know what to expect.
What Does Maternity Leave Entail?
Before getting into your rights while on maternity leave, you should know what leave you are entitled to and how long that leave lasts. According to the BC Employment Standards Act (the Act), employees are entitled to take two different types of leave:
- Maternity Leave: this entails 17 weeks of unpaid leave to prepare to have your child. You can take maternity leave while you are still pregnant and up to 13 weeks prior to having your child.
- Parental leave: this entails up to 35 weeks of unpaid leave once you have had (or adopted) your child and is usually taken directly after maternity leave. You can also apply, in certain circumstances for extended parental leave which will give you an additional 26 weeks of leave.
It is worth noting that the Act does not require your employer to pay you while on maternity leave or parental leave. However, your employer may include paid maternity leave as a benefit per your terms of employment.
Fortunately, the Canadian government offers financial assistance, known as Employment Insurance Benefits, to parents who take unpaid maternity leave, including up to 55% of your salary for a period of up to 15 weeks.
Can Your Employer Replace You While on Maternity Leave?
One of the most common concerns we see expecting families query is whether your employment contract can be terminated while on maternity or parental leave.
The answer is no. Your employer is not allowed to change the terms of your employment contract without your written consent while you are on maternity leave. And, according to the BC Human Rights Laws, you are also protected from being discriminated against as a result of your pregnancy.
In other words, your pregnancy status is considered a protected human rights ground, and it is against the law for your employer to treat you differently because you are pregnant.
For example, your employer cannot terminate your employment or pass you over for a promotion because you are expecting a baby.
If your employer goes ahead and terminates you regardless of the discrimination laws, you may have grounds to lodge an unfair dismissal case.
Can You Be Demoted While On Maternity Leave?
As with getting fired, your employer cannot demote you while you are on maternity leave. This is because they cannot alter an essential term of your employment without your consent.
Your job description is an essential term in your employment contract, so if your employer makes unilateral changes to this (i.e. such as demoting you and amending your job description), you may have grounds to lodge a case of constructive dismissal.
Can You Do Casual Work On Maternity Leave?
There is no hard or fast rule detailing whether you are allowed to work during maternity leave. However, your employer cannot force you to work during maternity leave because it is your right to take time off.
Should you decide you would like to do some work to supplement your earnings, you are allowed to do so provided that you and your employer have a written agreement in place detailing the terms of your casual work.
To claim your Employment Insurance maternity and parental benefits, however, you’ll have to indicate that your weekly earnings have decreased by more than 40%. So, if you are going to do casual work, it may affect your entitlement to claim your insurance benefits.
Key Takeaways
The BC Employment Standards Act sets out the rights and obligations of employers and employees in British Columbia. Employees are entitled to maternity leave, parental leave, or both for a total of up to 17 weeks unpaid maternity leave and 35 weeks parental leave following the birth (or adoption) of their child.
Beyond that, the law sets out to protect employees who have taken maternity leave and parental leave which means you cannot be fired or demoted during this period.
If you would like to discuss your rights further or if you believe that your employer is not observing your rights according to the Act, contact us today.
