For a lot of working women it is one of the single greatest concerns: “Can I be fired if I get pregnant?” There are, at least, eleven questions embedded in that question:
- Can I be fired for getting pregnant?
- Can I be fired for being pregnant?
- Can I be fired for taking pregnancy or parental leave?
- What about my benefits while I am on leave?
- What about my seniority?
- When my leave is done, can I get my old job back?
- Does my employer have to accommodate me once I have kids?
- Can I be fired while on pregnancy leave?
- Can I be fired after returning from pregnancy leave?
- How much severance should I get if I am fired?
- What about EI?
While this blog has previously canvassed the topic of an Ontario woman’s rights in employment, (Fired After Maternity Leave, Pregnant Employees are Entitled to Greater Notice of Dismissal,and Are New Parents Entitled to Accommodation) this post will attempt to bring together, in one place, some comprehensive answers.
Can I be Fired for Getting or Being Pregnant?
In short, the answer to this question is no. The Ontario Human Rights Code protects the right to equal treatment with respect to employment without discrimination because of sex. Section 10(2) of the Code specifically provides that:
The right to equal treatment without discrimination because of sex includes the right to equal treatment without discrimination because a woman is or may become pregnant.
So, if a woman becomes pregnant and informs her employer, the employer cannot legally fire her simply because she became pregnant. If the employer does fire her, the pregnant employee could bring an Application to the Human Rights Tribunal of Ontario asking for her job back, together with lost wages.
If the pregnant employee does not want her job back, she could sue for wrongful dismissal. On this point see the post: Pregnant Employees are Entitled to Greater Notice of Dismissal.
Can I be Fired for Taking Pregnancy Leave?
Before answering the question about being fired for taking pregnancy leave, let’s first consider what rights to pregnancy and parental leave a woman has.
Pursuant to Part XIV of the Ontario Employment Standards Act, 2000 ("the ESA") a female employee, working in Ontario, who becomes pregnant has the right to take up to 17 weeks of "pregnancy" leave. The entitlement to parental leave is 61 weeks for employees who take pregnancy leave, and 63 weeks otherwise for parents (including those who do not give birth) who do not. There are of course some conditions on when employees are eligible to take such leaves, and the law imposes some obligations on employees, (e.g. a requirement to provide a doctor’s note confirming the employee’s due date – if asked – s. 46(4)(b)), but in general those are employees’ rights to take leave.
The right to take pregnancy leave and parental leave is protected by the ESA. Section 74(1)(a)(iv) of the ESA provides that:
No employer or person acting on behalf of an employer shall intimidate, dismiss or otherwise penalize an employee or threaten to do so because the employee exercises or attempts to exercise a right under this Act.
Section 104 of the ESA provides that:
If an [Ontario Ministry of Labour] employment standards officer finds a contravention of [amongst other things, the right mentioned above] with respect to an employee, the officer may order that the employee be compensated for any loss he or she incurred as a result of the contravention or that he or she be reinstated or that he or she be both compensated and reinstated.
Section 74(2) of the ESA assists the employee by providing that:
Subject to [certain provisions,] in any proceeding under this Act, the burden of proof that an employer did not contravene a provision set out in this section lies upon the employer.
What all of that means is that if an Ontario employer fires an employee because she took maternity leave, then under Ontario law the Ministry of Labour has the power to get her her job back, together with compensation for lost wages. And, in any such case, it is the employer that has to prove that the reason that the employee was fired was not because of the pregnancy leave, and not the other way around (i.e. it is not the employee that has to prove that it was because of the pregnancy.)
What about my Benefits while I am on Leave?
A further implication of the right to take pregnancy and parental leave is set out in section 51 of the ESA. Generally, section 51 provides that, while on leave an employee continues to participate in all those benefit plans to which the employee would otherwise be entitled. Which means that if the employee was entitled to health, dental, or prescription drug benefits while an active employee, they remain entitled to participate in the plans providing those benefits while on leave. Subsection 51(3) provides that:
During an employee’s leave… the employer [is required to] continue to make the employer’s contributions for any [employer-sponsored benefits] plan… unless the employee gives the employer a written notice that the employee does not intend to pay the employee’s contributions, if any.
What about my Seniority?
Section 52 of the ESA guarantees an employee’s rights to seniority while on pregnancy or parental leave and prescribes that the period of time that the employee is on leave must be taken into consideration in any calculation of their years of service.
What Happens when my Leave is Done? Can I get my Old Job Back?
Once an employee’s pregnancy and parental leave are done, if the woman wishes to return to the workforce, she has the legal right, generally, to her old job back.
Section 53 of the ESA provides that:
Upon the conclusion of an employee’s leave under this Part [Part XIV], the employer [is required to] reinstate the employee to the position the employee most recently held with the employer, if it still exists, or to a comparable position, if it does not.
Subsection 53(3) protects the employee’s wage rate and the right to salary increases.
I Haven’t been Fired, But I heard about a New Law about Employers Being Required to Accommodate New Parents?
While technically not a new law, for those looking for information about an employer’s obligation to accommodate parents with child care obligations, see my post Employers Must Accommodate Parents – What it Means.
Can I be Fired While on Pregnancy Leave?
Canadian courts have frequently considered the question. The most commonly cited case on point is Whelehan v. Laidlaw Environmental Services Ltd., 1998 CanLII 6137 (BC SC). In that case the Honourable Madam Justice Allan of the British Columbia Supreme Court (equivalent to the Ontario Superior Court of Justice) decided that an employer could not legally provide working notice to an employee that was absent from active employment on account of pregnancy leave, Her Honour wrote that:
In [an earlier case,] this Court held that any period of notice given to employees cannot coincide with maternity leave. [Emphasis added.]
Justice Allan reached her conclusion by examining the purposes of reasonable notice and maternity leave:
It is useful to compare the underlying purposes of reasonable notice and maternity leave. The law requires employers to provide dismissed employees with compensation for an adequate period of time to enable them to pursue suitable reemployment without unreasonable financial disadvantage. The philosophy behind maternity leave is that women who are pregnant are entitled to a leave of absence from their jobs in order to accommodate childbirth and they are entitled to the assurance that their job tenure is secure during the period of their absence. (Para. 18)
In deciding that the written notice provided by the employer in that case was not sufficient, Justice Allan held that:
The notice period provided by [the employer] was of no practical assistance to [the dismissed employee] as she was approximately seven months pregnant at the time and unable to seek employment. (Para. 17.) [Emphasis added.]
A similar conclusion was reached by the New Brunswick Court of Queen’s Bench (again equivalent to the Ontario Superior Court of Justice) in the 2011 case of Donnelly v. Kings Landing, 2011 NBQB 267 (CanLII). In that case the Honourable Madam Justice Paulette C. Garnett, in reviewing a decision of a New Brunswick labour adjudicator, held that:
I agree with the reasoning in [several earlier decisions, including Whelehan.] Maternity leave is intended to give mothers time to care for their babies without having to report to work. Notice of dismissal is intended to give an employee a reasonable amount of time to secure alternative employment. In seeking that employment, the employee must be prepared, if the opportunity arises, to go to work. A mother on maternity leave is not required to go to work therefore it cannot be said that she is both on leave and on notice at the same time. The two concepts are incompatible. (Para. 34) [Emphasis added.]
What if They Fire Me after I Return?
For some employees, when they attempt to return to work they will learn that their position no longer exists and there is no comparable position. In these cases, the employee is essentially fired upon returning from maternity leave. Can an employer legally do this?
The answer is maybe. An employer cannot fire an employee while she is on maternity leave because she is on maternity leave. However, generally, an employer does not have to give back an employee’s previous job or a comparable job if its reasons for ending the employment are totally unrelated to the leave.
The question of why the employee was terminated upon return from leave thus becomes one of fact: was the employee terminated because she took leave or for some other reason?
If the employee believes that she was terminated because she took leave, then that employee can file a claim with the Ontario Ministry of Labour. See also: Fired After Maternity Leave
How much Severance am I Owed?
If the employee is fired while on pregnancy for reasons unrelated to the pregnancy, for example the employee’s entire division or work group is eliminated, then the returning employee is still entitled to notice, and potentially severance, upon her attempted return to work.
The amount of notice and severance that will be owed will be a function of a number of factors. For more on this topic see the post What is Wrongful Dismissal? under the heading “Defining Reasonable Notice.” See also: Pregnant Employees are Entitled to Greater Notice of Dismissal In general, it is best to seek a legal opinion on this point.
What about EI?
Employment Insurance is different from pregnancy leave laws and, unfortunately, the two do not work well together. In order to be eligible for ‘regular’ EI benefits an employee has to have a certain number of insurable hours within the past 52 weeks. For most women returning from maternity leave they will not have sufficient insurable hours in the prescribed period if they are fired immediately upon returning from leave.
This is an unfortunate inconsistency in the system and an issue that deserves consideration by the federal government. (Pregnancy leave rights as discussed above are regulated by the provincial government; EI is governed by the federal government.)
It is for that reason that ensuring that the amount of notice and severance provided by the employer on termination is reasonably sufficient is so important.
I still have questions.
I appreciate that this can be an overwhelming amount of information and, in large part, this post does not answer all questions.
For those that still have questions about their rights or their employer’s obligations, or for employers wanting to know more about their rights and obligations, I encourage you to seek out the assistance of an employment lawyer.
I can be reached by email at email@example.com or by phone at 613.238.6321 x233.
Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP. For 2.5 years he was in-house legal counsel providing employment law advice to one of Canada’s largest corporations. He has also been a part-time professor at Algonquin College teaching Trial Advocacy for Paralegals and Small Claims Court Practice.--
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 taking any decisions with respect to your own case.