DIVISION VII — Maternity-related Reassignment and Leave and Other Leaves

An employee who is pregnant or nursing may, during the period from the beginning of the pregnancy to the end of the twenty-fourth week following the birth, request the employer to modify her job functions or reassign her to another job if, by reason of the pregnancy or nursing, continuing any of her current job functions may pose a risk to her health or to that of the foetus or child.

Certificate

An employee’s request under subsection (1) must be accompanied by a certificate from a health care practitioner of the employee’s choice indicating the expected duration of the potential risk and the activities or conditions to avoid in order to eliminate the risk.

An employer to whom a request has been made under subsection 204(1) shall examine the request in consultation with the employee and, where reasonably practicable, shall modify the employee’s job functions or reassign her.

Rights of employee

An employee who has made a request under subsection 204(1) is entitled to continue in her current job while the employer examines her request, but, if the risk posed by continuing any of her job functions so requires, she is entitled to and shall be granted a leave of absence with pay at her regular rate of wages until the employer

Onus of proof

The onus is on the employer to show that a modification of job functions or a reassignment that would avoid the activities or conditions indicated in the certificate issued under subsection 204(2) is not reasonably practicable.

Employee to be informed

If the employer concludes that a modification of job functions or a reassignment that would avoid the activities or conditions indicated in the certificate is not reasonably practicable, the employer shall so inform the employee in writing.

Status of employee

An employee whose job functions are modified or who is reassigned shall be deemed to continue to hold the job that she held at the time of making the request under subsection 204(1), and shall continue to receive the wages and benefits that are attached to that job.

Employee’s right to leave

An employee referred to in subsection (4) is entitled to and shall be granted a leave of absence for the duration of the risk as indicated in the certificate.

Every employee is entitled to and shall be granted a leave of absence from employment of up to 17 weeks, which leave may begin not earlier than 13 weeks prior to the estimated date of her confinement and end not later than 17 weeks following the actual date of her confinement, if the employee provides her employer with a certificate of a health care practitioner certifying that she is pregnant.

Extension of period

If the confinement has not occurred during the 17 weeks of her leave of absence, the leave of absence is extended until the date of her confinement.

Extension of period — child in hospital

If, during the period of 17 weeks following the date of confinement, the child who was born is hospitalized, the period is extended by the number of weeks during which the child is hospitalized.

Limitation

An extension under subsection (2) must not result in the period being longer than 52 weeks.

Subject to subsections (2) and (3), every employee is entitled to and shall be granted a leave of absence from employment of up to 63 weeks to care for a newborn child of the employee or a child who is in the care of the employee for the purpose of adoption under the laws governing adoption in the province in which the employee resides.

Period when leave may be taken

The leave of absence granted under this section may only be taken during the 78-week period beginning

Extension of period

The period referred to in subsection (2) is extended by the number of weeks during which the employee is on leave under any of sections 206.3 to 206.5 and 206.9, is absent due to a reason referred to in subsection 239(1) or 239.1(1) or is on leave under any of paragraphs 247.5(1)(a), (b) and (d) to (g).

Extension of period — child in hospital

If the child referred to in subsection (1) is hospitalized during the period referred to in subsection (2), the period is extended by the number of weeks during which the child is hospitalized.

Limitation

An extension under subsection (2.1) or (2.2) must not result in the period being longer than 104 weeks.

Interruption

The employee may interrupt the leave referred to in subsection (1) in order to permit the employee to take leave under any of sections 206.3 to 206.5 and 206.9, to be absent due to a reason referred to in subsection 239(1) or 239.1(1) or to take leave under any of paragraphs 247.5(1)(a), (b) and (d) to (g).

Resumption

The leave referred to in subsection (1) resumes immediately after the interruption ends.

Aggregate leave — employees

The aggregate amount of leave that may be taken by more than one employee under this section in respect of the same birth or adoption shall not exceed 71 weeks, but the amount of leave that may be taken by one employee under this section in respect of the same birth or adoption shall not exceed 63 weeks.

Exception — medical leave

Except to the extent that it is inconsistent with subsection 239(7), section 209.1 applies to an employee who interrupted the leave referred to in subsection (1) in order to be absent due to a reason referred to in subsection 239(1).

[Repealed, 2021, c. 26, s. 22]

Exception — work-related illness or injury

Except to the extent that it is inconsistent with subsections 239.1(3) and (4), section 209.1 applies to an employee who interrupted the leave referred to in subsection (1) in order to be absent due to a reason referred to in subsection 239.1(1).

Exception — member of reserve force

Despite section 209.1, sections 247.93 to 247.95 apply to an employee who interrupted the leave referred to in subsection (1) in order to take leave under any of paragraphs 247.5(1)(a), (b) and (d) to (g).

For the purposes of this section, care, family member and support have, subject to the regulations, the same meanings as in the regulations made under the Employment Insurance Act and week means the period between midnight on Saturday and midnight on the immediately following Saturday.

Entitlement to leave

Subject to subsections (3) to (8), every employee is entitled to and shall be granted a leave of absence from employment of up to 28 weeks to provide care or support to a family member of the employee if a health care practitioner issues a certificate stating that the family member has a serious medical condition with a significant risk of death within 26 weeks from

[Repealed, 2018, c. 27, s. 468]

Period when leave may be taken

The leave of absence may only be taken during the period

Certificate not necessary

For greater certainty, but subject to subsection (3), for leave under this section to be taken after the end of the period of 26 weeks set out in subsection (2), it is not necessary for a health care practitioner to issue an additional certificate under that subsection (2).

Shorter period

If a shorter period is prescribed by regulation for the purposes of subsection 23.1(5) or 152.06(4) of the Employment Insurance Act,

Expiry of shorter period

When a shorter period referred to in subsection (4) has expired in respect of a family member, no further leave may be taken under this section in respect of that family member until the minimum number of weeks prescribed for the purposes of subsection 12(4.3) or 152.14(7) of the Employment Insurance Act has elapsed.

[Repealed, 2014, c. 20, s. 242]

Aggregate leave — more than one employee

The aggregate amount of leave that may be taken by two or more employees under this section in respect of the care or support of the same family member shall not exceed 28 weeks in the period referred to in subsection (3).

Limitation — section 206.4

No leave may be taken by one or more employees under subsection 206.4(2) or (2.1) before the end of the leave taken under subsection (2) in respect of the same person.

Copy of certificate

If requested in writing by the employer within 15 days after an employee’s return to work, the employee must provide the employer with a copy of the certificate referred to in subsection (2).

Application

The references in this section to provisions that are in Part VII.1 of the Employment Insurance Act apply only in relation to employees who are self-employed persons referred to in paragraph (b) of the definition self-employed person in subsection 152.01(1) of that Act.

For the purposes of this section, care, critically ill adult, critically ill child, family member and support have, subject to the regulations, the same meanings as in the regulations made under the Employment Insurance Act and week has the same meaning as in subsection 206.3(1).

Leave — 37 weeks

Every employee who is a family member of a critically ill child is entitled to and shall be granted a leave of absence from employment of up to 37 weeks in order to care for or support that child if a health care practitioner has issued a certificate that

Leave — 17 weeks

Every employee who is a family member of a critically ill adult is entitled to and shall be granted a leave of absence from employment of up to 17 weeks in order to care for or support that adult if a health care practitioner has issued a certificate that

[Repealed, 2018, c. 27, s. 469]

Period when leave may be taken  —  child

The period during which the employee may take a leave of absence

Aggregate leave — employees

The aggregate amount of leave that may be taken by employees under this section during the period referred to in subsection (4) must not exceed

Limitation

No leave may be taken by one or more employees under subsection (2.1) before the end of the period referred to in subsection (4) if leave was granted under subsection (2) in respect of the same person.

Limitation — section 206.3

No leave may be taken by one or more employees under section 206.3 before the end of the leave taken under subsection (2) or (2.1) in respect of the same person.

The following definitions apply in this section.

Leave — death of child

Every employee is entitled to and shall be granted a leave of absence from employment of up to 156 weeks if the employee is the parent of a child who has died and it is probable, considering the circumstances, that the child died as a result of a crime.

Leave  —  child who has disappeared

Every employee is entitled to and shall be granted a leave of absence from employment of up to 156 weeks if the employee is the parent of a child who has disappeared and it is probable, considering the circumstances, that the child disappeared as a result of a crime.

Exception

An employee is not entitled to a leave of absence if they are charged with the crime.

Period when leave may be taken

The period during which the employee may take a leave of absence

Disappearance of child

Despite paragraph (5)(b), in the case of a child who disappears and who is subsequently found, the period referred to in subsection (5) ends

Clarification

For greater certainty, a leave under this section ends on the day on which the circumstances are such that it is no longer probable that the death or disappearance was the result of a crime.

Aggregate leave  —  employees

The aggregate amount of leave that may be taken by employees under this section in respect of the same death or disappearance of a child — or the same children who die or disappear as a result of the same event — must not exceed 156 weeks.

The following definitions apply in this section.

Eligible employees

An employee is eligible for the leave of absence referred to in subsection (3) if

Entitlement to leave

An employee who is eligible for a leave of absence under subsection (2) is entitled to and shall be granted a leave of absence of up to

Pregnancy with multiples

For the purposes of this section, the following apply in respect of a pregnancy of more than one foetus:

Period when leave may be taken

The period during which the employee may take a leave of absence begins on the day on which the pregnancy does not result in a live birth and ends 26 weeks after that day.

Leave with pay

If the employee has completed three consecutive months of continuous employment with the employer, the employee is entitled to the first three days of leave with pay at their regular rate of wages for their normal hours of work, and such pay shall for all purposes be considered to be wages.

Division of leave

The leave of absence may be taken in one or two periods. The employer may require that each period of leave be not less than one day’s duration.

Regulations

The Governor in Council may make regulations defining any expression for the purposes of this section, including the expressions “regular rate of wages” and “normal hours of work”.

Every employee is entitled to and shall be granted a leave of absence from employment of up to five days in every calendar year for

Leave with pay

If the employee has completed three consecutive months of continuous employment with the employer, the employee is entitled to the first three days of the leave with pay at their regular rate of wages for their normal hours of work, and such pay shall for all purposes be considered to be wages.

Division of leave

The leave of absence may be taken in one or more periods. The employer may require that each period of leave be of not less than one day’s duration.

Documentation

The employer may, in writing and no later than 15 days after an employee’s return to work, request that the employee provide documentation to support the reasons for the leave. The employee shall provide that documentation only if it is reasonably practicable for them to obtain and provide it.

Regulations

The Governor in Council may make regulations for the purposes of this section, including regulations

The following definitions apply in subsection (2).

Leave — 10 days

Every employee who is a victim of family violence or who is the parent of a child who is a victim of family violence is entitled to and shall be granted a leave of absence from employment of up to 10 days in every calendar year, in order to enable the employee, in respect of such violence,

Leave with pay

If the employee has completed three consecutive months of continuous employment with the employer, the employee is entitled to the first five days of the leave with pay at their regular rate of wages for their normal hours of work, and such pay shall for all purposes be considered to be wages.

Exception

An employee is not entitled to a leave of absence with respect to any act of family violence if the employee is charged with an offence related to that act or if it is probable, considering the circumstances, that the employee committed that act.

Division of leave

The leave of absence may be taken in one or more periods. The employer may require that each period of leave be of not less than one day’s duration.

Documentation

The employer may, in writing and no later than 15 days after an employee’s return to work, request the employee to provide documentation to support the reasons for the leave. The employee shall provide that documentation only if it is reasonably practicable for them to obtain and provide it.

Regulations

The Governor in Council may make regulations defining the expressions “regular rate of wages” and “normal hours of work” for the purposes of subsection (2.1).

Every employee who is an Aboriginal person and who has completed three consecutive months of continuous employment with an employer is entitled to and shall be granted a leave of absence from employment of up to five days in every calendar year, in order to enable the employee to engage in traditional Aboriginal practices, including

Division of leave

The leave of absence may be taken in one or more periods. The employer may require that each period of leave be not less than one day’s duration.

Documentation

The employer may, in writing and no later than 15 days after an employee’s return to work, request the employee to provide documentation that shows the employee as an Aboriginal person. The employee shall provide that documentation only if it is reasonably practicable for him or her to obtain and provide it.

Definition of Aboriginal

For the purposes of this section, Aboriginal means Indian, Inuit or Métis.

Every employee who intends to take a leave of absence from employment under section 206 or 206.1 shall

Exception — valid reason

If there is a valid reason for not providing notice in accordance with paragraph (1)(a), the employee shall notify the employer in writing as soon as possible that the employee intends to take a leave of absence.

Change in length of leave

Every employee who intends to take or who is on a leave of absence from employment under section 206 or 206.1 shall provide the employer with notice in writing of at least four weeks of any change in the length of leave intended to be taken, unless there is a valid reason why that notice cannot be given, in which case the employee shall provide the employer with notice in writing as soon as possible.

An employee may interrupt a leave of absence referred to in any of sections 206.3 to 206.5 in order to be absent due to a reason referred to in subsection 239(1) or 239.1(1).

Resumption

The interrupted leave resumes immediately after the interruption ends.

Exception — medical leave

Except to the extent that it is inconsistent with subsection 239(7), section 209.1 applies to an employee who interrupted the leave in order to be absent due to a reason referred to in subsection 239(1).

[Repealed, 2021, c. 26, s. 23]

Exception  — work-related illness or injury

Except to the extent that it is inconsistent with subsections 239.1(3) and (4), section 209.1 applies to an employee who interrupted the leave in order to be absent due to a reason referred to in subsection 239.1(1).

An employee who intends to interrupt their leave under subsection 206.1(2.4) or 207.02(1) shall provide the employer with a notice in writing of the interruption before or as soon as possible after it begins.

Notice to employer  — resumption of leave

The employee shall provide the employer with a notice in writing of the day on which they resume their leave before or as soon as possible after that day.

An employee who intends to interrupt their maternity or parental leave in order to return to work as a result of the hospitalization of his or her child shall provide the employer with a notice in writing of the interruption as soon as possible.

Employer’s decision

The employer shall, within one week after receiving the notice, advise the employee in writing of the employer’s decision to accept or refuse the employee’s return to work.

Refusal

If the employer refuses the interruption or does not advise the employee within the week referred to in subsection (2), the leave under section 206 or 206.1 is extended by the number of weeks during which the child is hospitalized. The aggregate amounts of leave referred to in subsection 206.1(3) and section 206.2 are extended by the same number of weeks.

Certificate

The employer may, in writing and no later than 15 days after an employee’s return to work, require the employee to provide a certificate issued by a health care practitioner attesting to the child’s hospitalization.

End of interruption

An employee who intends to return to their maternity or parental leave after an interruption shall, as soon as possible, advise the employer in writing of the date on which the maternity or parental leave is to resume.

Limitation

The extension referred to in subsection (3) applies only once in respect of the same child.

Every employee who takes a leave of absence from employment under any of sections 206.3 to 206.9 shall, as soon as possible, provide the employer with a notice in writing of the reasons for the leave and the length of the leave that they intend to take.

Notice of change in length of leave

Every employee who is on a leave of absence from employment under any of sections 206.3 to 206.9 shall, as soon as possible, provide the employer with a notice in writing of any change in the length of the leave that they intend to take.

Notice — leave of more than four weeks

If the length of the leave taken under any of sections 206.3 to 206.5, paragraph 206.51(3)(a) or section 206.9 is more than four weeks, the notice in writing of any change in the length of the leave shall be provided on at least four weeks’ notice, unless there is a valid reason why that cannot be done.

Documentation

The employer may require the employee to provide documentation in support of the reasons for the leave taken under section 206.4, 206.5 or 206.9 and of any change in the length of leave that the employee intends to take.

Return to work postponed

If an employee who takes a leave of more than four weeks under any of sections 206.3 to 206.5 or paragraph 206.51(3)(a) wishes to shorten the length of the leave but does not provide the employer with four weeks’ notice, the employer may postpone the employee’s return to work for a period of up to four weeks after the day on which the employee informs the employer of the new end date of the leave. If the employer informs the employee that their return to work is postponed, the employee is not entitled to return to work until the day that is indicated by the employer.

Deemed part of leave

The period of the postponement is deemed to be part of the leave.

Subject to subsection (2), no employer shall require an employee to take a leave of absence from employment because the employee is pregnant.

Exception

An employer may require a pregnant employee to take a leave of absence from employment if the employee is unable to perform an essential function of her job and no appropriate alternative job is available for that employee.

Length of leave

A pregnant employee who is unable to perform an essential function of her job and for whom no appropriate alternative job is available may be required to take a leave of absence from employment only for such time as she is unable to perform that essential function.

Burden of proof

The burden of proving that a pregnant employee is unable to perform an essential function of her job rests with the employer.

Every employee who takes or is required to take a leave of absence from employment under this Division is entitled to be reinstated in the position that the employee occupied when the leave of absence from employment commenced, and every employer of such an employee shall, on the expiration of any such leave, reinstate the employee in that position.

Comparable position

Where for any valid reason an employer cannot reinstate an employee in the position referred to in subsection (1), the employer shall reinstate the employee in a comparable position with the same wages and benefits and in the same location.

Wages and benefits affected by reorganization

Where an employee takes leave under this Division and, during the period of that leave, the wages and benefits of the group of employees of which that employee is a member are changed as part of a plan to reorganize the industrial establishment in which that group is employed, that employee is entitled, on being reinstated in employment under this section, to receive the wages and benefits in respect of that employment that that employee would have been entitled to receive had that employee been working when the reorganization took place.

Notice of changes in wages and benefits

The employer of every employee who is on a leave of absence from employment under this Division and whose wages and benefits would be changed as a result of a reorganization referred to in subsection (3) shall notify the employee in writing of that change as soon as possible.

The pension, health and disability benefits and the seniority of any employee who takes or is required to take a leave of absence from employment under this Division shall accumulate during the entire period of the leave.

Contributions by employee

Where contributions are required from an employee in order for the employee to be entitled to a benefit referred to in subsection (1), the employee is responsible for and must, within a reasonable time, pay those contributions for the period of any leave of absence under this Division unless, before taking leave or within a reasonable time thereafter, the employee notifies the employer of the employee’s intention to discontinue contributions during that period.

Contributions by employer

An employer who pays contributions in respect of a benefit referred to in subsection (1) shall continue to pay those contributions during an employee’s leave of absence under this Division in at least the same proportion as if the employee were not on leave unless the employee does not pay the employee’s contributions, if any, within a reasonable time.

Failure to pay contributions

For the purposes of calculating the pension, health and disability benefits of an employee in respect of whom contributions have not been paid as required by subsections (2) and (2.1), the benefits shall not accumulate during the leave of absence and employment on the employee’s return to work shall be deemed to be continuous with employment before the employee’s absence.

Deemed continuous employment

For the purposes of calculating benefits of an employee who takes or is required to take a leave of absence from employment under this Division, other than benefits referred to in subsection (1), employment on the employee’s return to work shall be deemed to be continuous with employment before the employee’s absence.

No employer shall dismiss, suspend, lay off, demote or discipline an employee because the employee is pregnant or has applied for leave of absence in accordance with this Division or take into account the pregnancy of an employee or the intention of an employee to take leave of absence from employment under this Division in any decision to promote or train the employee.

Prohibition

The prohibitions set out in subsection (1) also apply in respect of an employee who has taken a leave of absence under any of sections 206.3 to 206.9.