Sunday, 11 October 2015

18 Months of Maternity Leave? Unpacking the Proposal

On October 7, 2015, the Conservative Party of Canada announced that “a re-elected Conservative government will provide up to 18 months of job protection for new parents and the option to stretch Employment Insurance (EI) benefits over 18 months.”

But what do those campaign promises actually mean for most working Canadians?

While this blog attempts to be apolitical in its musings, making sense of the law (and proposals to changes to the law) has long been required as a necessary element of being a lawyer. The point of this post is not to cast judgment on the proposal; rather it is simply to better explain the realities of the situation.

The Proposal

According to the announcement, “under a re-elected Conservative government, the four-part package announced [October 7, 2015] would achieve the following:"

  • The federal labour code [sic] will be amended to provide job protection for new parents until their babies have reached the age of 18 months.
  • Parents can opt to receive EI parental benefits at the full rate for up to 35 weeks, or they can extend those payments at a lesser rate up to a maximum of 61 weeks. When combined with other EI maternity leave, this means parents will be able to receive a stream of income until their babies are 18 months old.
  • A new two-year pilot project will be established to allow parents to earn self-employment income, without impacting their EI maternity or parental benefits, up to 100% of the weekly EI maximum insurable earnings threshold.
  • Women receiving EI maternity benefits will also be able to earn employment income under the Working While on Claim pilot project. This is currently only permitted for those receiving EI parental benefits.

By and large it has been the first two proposals that have received the most attention. The second two, which allow a new mother to work while still receiving EI benefits seems somewhat inconsistent with the primary messaging surrounding the proposal.

Making Sense of the Law

While it is important to note, from a political standpoint, that the Conservative party is not proposing to increase the amount of money that would be provided to new parents in the form of actual benefits, the focus of this point will be on the statement concerning increased job protection for Canadian workers.

What the party is proposing to do is amend “the federal labour code… to provide job protection for new parents until their babies have reached the age of 18 months.”

While such a proposal may be viewed by some as laudable, especially those who wish to spend more time with their new offspring, there is only one small problem: “the federal labour code” governs only a small percentage of Canadian workplaces. Unless provincial governments felt inclined to somehow match such protections, that change in the law would affect very few workers.

Why Wouldn’t a Change to the Labour Code Help Most Workers?

As is explained more fully on my page, Which Laws Apply?, the regulation of employment standards in Canada is complicated and confusing. Both the federal and provincial governments have the legal ability to regulate employment, but only within their own, separate spheres of influence. The power is divided; not shared. This division of powers can result in confusion and debate as to exactly which set of laws govern the workplace.

The Canada Labour Code (presumably the law to which the Conservatives refer when they talk about the “federal labour code”) is the statutory law that prescribes employment standards in federally regulated industries. Importantly, the Canada Labour Code applies only to “federal works and undertakings”, which is defined by section 2 of that law as follows:

“federal work, undertaking or business” means any work, undertaking or business that is within the legislative authority of Parliament, including, without restricting the generality of the foregoing,

(a) a work, undertaking or business operated or carried on for or in connection with navigation and shipping, whether inland or maritime, including the operation of ships and transportation by ship anywhere in Canada,

(b) a railway, canal, telegraph or other work or undertaking connecting any province with any other province, or extending beyond the limits of a province,

(c) a line of ships connecting a province with any other province, or extending beyond the limits of a province,

(d) a ferry between any province and any other province or between any province and any country other than Canada,

(e) aerodromes, aircraft or a line of air transportation,

(f) a radio broadcasting station,

(g) a bank or an authorized foreign bank within the meaning of section 2 of the Bank Act,

(h) a work or undertaking that, although wholly situated within a province, is before or after its execution declared by Parliament to be for the general advantage of Canada or for the advantage of two or more of the provinces,

(i) a work, undertaking or business outside the exclusive legislative authority of the legislatures of the provinces, and

(j) a work, undertaking or activity in respect of which federal laws within the meaning of section 2 of the Oceans Act apply pursuant to section 20 of that Act and any regulations made pursuant to paragraph 26(1)(k) of that Act.

While that list might seem rather long, when one considers the spectrum of industries in Canada, it is actually rather narrow.

Most industries in Canada, including most retail employment, are governed by provincial legislation. For example, in Ontario, most workers are covered by the Ontario Employment Standards Act, 2000.

What a Change to the Law Would Mean for Workers

As hopefully explained above, a change to the “federal labour code” would not mean very much for most workers in Canada. Indeed, what such a change could do is create a false sense of entitlement among workers, thereby jeopardizing their employment.

What is more, while workers in both federally and provincially regulated workplaces are eligible to receive employment insurance benefits from the federal government (a point of law sure to add confusion to the situation), employees in provincially regulated workplaces who elect to receive their EI benefits over 18 months may still be required to return to work after only 12. The net result is that the new parents would have unnecessarily reduced their EI entitlement for the 12 months they were absent from work. If those same parents then declined to continue receiving benefits after returning to work (although under the proposal, they should ostensibly be able to continue receiving benefits), then the parents would forfeit one third of their potential entitlement.

At this point these proposals are not yet law. As such, how such programs would actually work in practice remains to be seen. However, if the Conservatives are re-elected and/or if such changes are made to the law, parents may be prudent to seek further legal advice before making any decisions that may affect their entitlements.

If you are a worker in Ontario and are looking for advice with respect to your employment law questions, the professional, experienced and cost-effective employment lawyers for employees at Ottawa's Kelly Santini LLP would be happy to be of service to you.

What a Change to the Law Would Mean for Employers

Technically, a change to the Canada Labour Code would likely have no real impact on most Canadian employers.

That said, mistaken beliefs about one’s rights would likely create tension between employers and employees as employees attempt to take up to 18 months away from work.

Employers will be forced to work with such employees to ensure that such workers are properly educated as to their rights and responsibilities. Getting such messaging ‘wrong’ can easily result in claims of constructive dismissal or breaches of the Ontario Human Rights Code.

To that end, and before taking any steps with respect to new-parent employees, employers would be prudent to seek professional legal advice.

If you are an employer in Ontario and are looking for experienced, pragmatic, and honest legal advice with respect to your workplace issues, the professional, experienced and cost-effective employment lawyers for employers at Ottawa's Kelly Santini LLP would be happy to be of service to your business or organization.

Contact Me

To reach the author of this blog, Sean Bawden, email sbawden@kellysantini.com or call 613.238.6321 x260. You may also use the contact box at the top of this page.

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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.

Sean Bawden, publisher of Labour Pains, can be reached by email at sbawden@kellysantini.com or by phone at 613.238.6321.

Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP. He is also a part-time professor at Algonquin College teaching Trial Advocacy for Paralegals and Small Claims Court Practice.



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