June 29, 2018

Recent Changes Affect Parental and Maternity Leave in Atlantic Canada

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In December 2017, the federal government introduced major changes to maternal and parental employment insurance (EI) benefits:

I. MATERNITY EI BENEFITS

Mothers can now start EI Maternity Benefits as early as 12 weeks before their due date (previously 8 weeks). Maternity benefits are provided to mothers—including surrogates—who are unable to work because they are pregnant or have recently given birth. EI Maternity Benefits are provided for a maximum of 15 weeks at 55% of their average weekly insurable earnings, to a maximum of $547 per week.

II. PARENTAL EI BENEFITS

Substantial changes were made to EI Parental Benefits. EI Parental Benefits are offered to—and shareable between—parents or guardians caring for a newborn or newly adopted child. There are now two options available for new parents: standard benefits or the new extended benefits.

Standard EI Parental Benefits provide parents with up to 35 weeks of EI Parental Benefits and must be claimed within the 12 month period after the child was born or adopted. The claimant receives a benefit rate of 55% of his/her average weekly insurable earnings, up to a maximum of $547 per week.

Extended EI Parental Benefits provide parents with up to 61 weeks of Extended EI Parental Benefits and must be claimed within the 18 month period after the child was born or adopted. The claimant receives a benefit rate of 33% of their average weekly insurable earnings, up to a maximum of $328 per week.

Extended EI Parental Benefits provide the same cumulative value as Standard EI Parental Benefits. However, it provides parents with the option of extending their benefits for an extra six month period while receiving a lower weekly benefit amount.

III. MATERNITY & PARENTAL LEAVE

While EI benefits are regulated by the federal government, the amount of employment-protected leave an employee may take following the birth or adoption of a child is a matter that generally falls under provincial jurisdiction. Until recently, the combined amount of employment-protected maternity and parental leave an employee could take was legislatively capped at 12 months. However, in light of the recent changes made by the federal government to EI Parental Benefits, several provinces have amended their legislation to include a longer period of employment-protected parental leave. This change, however, has not been universally adopted by all provinces.

Employers in provinces that have not amended their legislation are not obligated to grant employees a leave of absence extending beyond 12 months from the date the baby was born or adopted.

A. ATLANTIC PROVINCES THAT HAVE AMENDED PARENTAL LEAVE:

i. New Brunswick


New Brunswick has amended its Employment Standards Act such that employees may now take up to 62 weeks of parental leave, with a maximum combined duration of maternity (or adoption) and parental leave of 78 weeks (18 months).

Additionally, maternity leave under the Employment Standards Act were amended such that maternity leave may now begin as early as 13 weeks before the due date.

In light of these legislative changes, New Brunswick employers with a top-up parental leave policy should review their policy language to determine if it needs to be amended to include any limits on duration or quantum of benefit earnings.

ii. Newfoundland and Labrador


Newfoundland and Labrador has amended its Labour Standards Act such that employees may now take up to 61 weeks of parental leave, with a maximum combined duration of maternity (or adoption) and parental leave of 78 weeks (18 months).

Newfoundland and Labrador’s Labour Standards Act allows for maternity leave to begin no earlier than 17 weeks before the due date. The leave ends 17 weeks after it began, unless the employee is not entitled to parental leave, in which case it ends 17 weeks after the birth.

In light of these legislative changes, employers in Newfoundland and Labrador with a top-up parental leave policy should review their policy language to determine if it needs to be amended to include any limits on duration or quantum of benefits earnings.

B. ATLANTIC PROVINCES THAT HAVE NOT AMENDED PARENTAL LEAVE:

i. Nova Scotia


Nova Scotia has not amended its Labour Standards Code to increase the amount of parental leave employees are entitled to. The Labour Standards Code allows parents to take up to 35 weeks of parental leave, beginning immediately after maternity leave. The combined maximum leave between maternity and parental leave is 52 weeks (12 months).

Nova Scotians may begin maternity leave up to 16 weeks before the due date. The leave can last up to 17 weeks, and the mother must take at least 1 week after the delivery date.

ii. Prince Edward Island


Prince Edward Island has not amended its Employment Standards Act to increase the amount of parental leave employees are entitled to.  Parents can take up to 35 weeks of parental leave, beginning immediately after maternity leave to a combined total of 52. Adoption leave is also offered at a maximum of 52 weeks.

Mothers in Prince Edward Island may begin maternity leave no earlier than 11 weeks before the due date and the leave lasts for a maximum of 17 weeks.


Province


Type of Leave


Earliest Start Date

(weeks before due date)


Maximum Length
(weeks)


Maximum Combined Leave
(weeks)



New Brunswick


Maternity


13


17



78*


Parental


-


62



Newfoundland and Labrador


Maternity


17


17**



78


Parental


-


61



Nova Scotia


Maternity


16


17***



52


Parental


-


35



Prince Edward Island


Maternity


11


17



52


Parental


-


35


* While the individual combined maternity and parental leave entitlements are equal to 79 weeks, the maximum combined benefits have been legislatively capped at 78 weeks.


**Maternity leave is extended for 17 weeks from the date of birth for employees that are ineligible for parental leave.

***Maternity leave cannot end until at least one week after birth.

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Cox & Palmer publications are intended to provide information of a general nature only and not legal advice. The information presented is current to the date of publication and may be subject to change following the publication date.