Can I get EI if I get Fired After Maternity Leave?

Can someone who gets fired shortly after returning from maternity leave receive Employment Insurance (EI) benefits?

The short answer is currently “no.” Although the answer depends on how long after returning to work the employee finds herself suddenly unemployed. (While it is legally permissible for men to take parental leave and while it is possible for those men to lose their job shortly after doing so, the reality is that this situation is far more common for women than it is for men. While the law is gender neutral and men can be effected by this law in the same way that women are, this post will be written from the perspective of new mothers.)

The Context

There is no doubt that, notwithstanding all the protections afforded to those who take parental leave (on this point see this blog’s post about various aspects of the legal right to take parental leave here: Pregnancy Leave Questions,) many employees who take parental leave end up out of work once their leave is done.

According to a poll done by the British newspaper The Guardian in March 2013, one in seven women are made redundant after maternity leave. (Source: One in seven women are made redundant after maternity leave.)

According to that same story:

The figures show one in seven of the women surveyed had lost their job while on maternity leave; 40% said their jobs had changed by the time they returned, with half reporting a cut in hours or demotion. More than a tenth had been replaced in their jobs by the person who had covered their maternity leave.

There is little reason to think that the situation in Ontario is much better.

The EI Problem

While undoubtedly the rates at which new mothers find themselves suddenly unemployed is problematic in and of itself, the problem is compounded by Canada’s existing employment insurance (EI) laws.

Under the current regime unless an employee accrues 600 insurable hours of work (that is unless she works 16 weeks at 37.5 hours a week) before being let go, that employee is ineligible for employment insurance benefits.

This fact strikes some new mothers as manifestly unfair. According to a report in the Ottawa Citizen on March 8, 2014, (which by perhaps no coincidence was International Women’s Day) at least one new mom is petitioning the federal government to change the law. The report about Chantal Sarkisian’s efforts can be found here: Working Mothers Face Discrimination) Ms. Sarkisian’s petition can be found here: Petition to Government of Canada to Amend Legislation to Separate the Definition of Maternity / Parental Leave and Unemployment)

Solutions

The EI situation needs to be addressed. There will be legitimate cases were for any number of reasons an employer will be unable to reinstate returning parents to their former positions. For example, if the company goes out of business in the year that the employee is absent, then obviously there is no position to which to reinstate the employee. In that case, the employee, through no fault of her own, will be unemployed and it is for exactly that reason that employment insurance was developed in the first place.

However, more can be done to address those cases where parents find themselves let go under more suspicious circumstances. Employers should be mindful about the stresses such terminations can cause employees and also need to appreciate the real financial consequences that can accompany inappropriate terminations.

Takeaways for Employees

If you are a new parent and you have been recently let go from your job, whether you qualify for EI or not, it may be prudent to speak to a lawyer about your rights. 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. To reach the author of this blog, Sean Bawden, email sbawden@kellysantini.com or call 613.238.6321 x260.

Takeaways for Employers

As this post has often mentioned and as the law has made plain, employers can terminate employees who take or are on maternity or parental leave. However, taking such a decision can be costly if taken for inappropriate reasons. Before taking any decisions regarding employees on maternity or parental leave it would be prudent to seek professional legal advice. 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. To reach the author of this blog, Sean Bawden, email sbawden@kellysantini.com or call 613.238.6321 x260.

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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation and it is always prudent to seek professional legal advice before taking any decisions on one’s own case.

Sean Bawden, publisher of the law blog for the suddenly unemployed, 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, and part-time professor at Algonquin College teaching Trial Advocacy for Paralegals and Small Claims Court Practice.