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Employment & Labour

Possible risks associated with extended parental leave: Zeilikman

The option of extending parental leave to 18 months may lead to some challenges and risks to employees who choose to use it, says Vaughan labour and employment lawyer Arthur Zeilikman.

“I will be curious to see how it will play out,” says Zeilikman, principal of Zeilikman Law. “I predict that, ironically, there may be some terminations. Many leaves are statutorily protected but unfortunately, employers can still neglect to respect them.”

Under Ottawa’s planned changes to parental leave benefits, mothers and fathers would have the option of taking a job-protected leave and collecting employment insurance for a maximum of 18 months, up from one year. Provincial legislators would have to follow suit in amending leave rights.

However, that would mean stretching out government-issued benefits at a lower rate. For example, parents who take one year receive 55 per cent of their income to a maximum of $535 a week, the Globe and Mail reports. An 18-month leave would mean receiving 15 weeks at the 55 per cent pay rate, followed by 61 weeks at 33 per cent.

“There is always a tension between employers who need to run a business effectively and the employee’s right to job protection,” Zeilikman tells AdvocateDaily.com. “I think this will be tough for employers, especially small employers.”

As a result, he expects many workers will feel pressure not to use the entire 18 months available to them especially given the fact that the leave benefits are not substantial.

Under Ontario law, an employee must be reinstated to the same or a comparable position after a leave, to the extent that it exists, Zeilikman says.

The Human Rights Code also provides an element of job protection to parents, Zeilikman adds. Essentially, the job termination cannot be related to the employee’s pregnancy or family status.

But “subtle discrimination” exists, he says, and it is often difficult to prove. While it is not the norm to encounter such cases of employees losing their jobs after having a child, he says it’s surprising how often such cases come up.

“An employer wouldn’t say ‘We can’t wait for you.’ They would say, ‘We’re restructuring,’ or something like that.”

The reality is, many employees who are terminated while on leave, especially from smaller provincial employers, likely wouldn’t seek reinstatement to the same position after pursuing legal action. Instead, they would sue for monetary compensation, Zeilikman says.

“If you have a bad taste in your mouth about the way you were fired, do you actually want your job back?” he says. “You may have the right to be reinstated, however, there's also the practical and the human element of it."

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