GUIDELINES FOR DRAFTING AND IMPLEMENTING MATERNTIY AND PARENTAL LEAVE POLICIES

Transcription

1 GUIDELINES FOR DRAFTING AND IMPLEMENTING MATERNTIY AND PARENTAL LEAVE POLICIES Prepared by: The Joint Committee for Gender & Equality in the Legal Profession (1995), amended (2001) and in 2003 by the Equality, Equity and Diversity Committee and further amended (2010) I. Introduction Table of Contents II. Overview of the Law relating to Maternity and Parental Leave Policies in Alberta A. Alberta Human Rights Act 1. Who is an Employee? 2. Pregnancy as Sex Discrimination 3. Health Benefit Plans 4. Duty to Accommodate B. Employment Standards Code 1. Maternity Leave 2. Parental Leave 3. Job Protection for Maternity and Parental Leave 4. Notice to Resume Employment After Maternity and/or Parental Leave 5. Notice to Terminate Employment After Maternity and/or Parental Leave 6. Agreements at Variance with the ESC C. The Employment Insurance Act 1. Types of Benefits a. Maternity Benefits b. Parental Benefits c. Sickness Benefits 2. Top-up Provisions 1

2 III. Considerations for Drafting and Implementing a Maternity and Parental Leave Policy A. Eligibility 1. Partners, associates and other employees 2. Length of Service to the Firm 3. Frequency of Leave 4. Common-Law and Other Relationships B. Leave Portions of the Policy 1. Maternity Leave a. Health-Related Maternity Leave b. Impact of health insurance benefit plans c. The Portion of maternity leave which is not health-related d. Pregnancy Related Illness e. Unpaid Maternity Leave 2. Parental Leave C. Benefits D. Impact of Leave on Consideration for Partnership E. Procedures 1. Approval 2. Transitional Provision a. Leave Contact Person b. Leave Memorandum c. Return to Work d. Impact of Leave on Future Work 3. Transitional Work Scheduling F. Cost 2

3 1. Maternity Leave 2. Parental Leave G. Other Considerations 1. Written Policies 2. Firm Attitude 3. Size of Firm 4. Professionalism 5. Sample Policies from Other Jurisdictions V. Conclusion VI. Bibliography VII. Appendix 1. Sample Parental Leave Policy I. Introduction These Guidelines provide information and guidance on drafting and implementing maternity and parental leave policies for employers in legal workplaces. 1 This is a somewhat difficult task because although an employer s obligations are quite clear, the options for implementation of the employee s entitlements and benefits under the policies can be complex. It is important and helpful from the outset to understand the different types of leave: Maternity leave is granted exclusively to birth mothers and is sometimes divided into the following phases: o a health related portion which is intended to cover the period of physical disability associated with pregnancy and childbirth, and o another period of time intended to help meet the demands of the infant and to provide time for nurturing, bonding and other child rearing functions. Parental leave is granted to either or both parents and to adoptive parents. Parental leave is directed at a period of time for parents to bond with the child and for child rearing functions; these are neither gender-specific nor related to the physical dimensions of childbirth. 1 The Equality, Equity and Diversity Committee has a mandate to help the profession identify, understand and address equality, equity and diversity issues. The committee consists of benchers of the law society, designates from both law schools in the province and representatives from the Canadian Bar Association. As part of its mandate, the Committee has developed guidelines and sample policies in key areas such as: sexual harassment; equality in employment interviews; bereavement, family responsibility and compassionate leaves; gender inclusive communications; alternate work schedules. 3

4 Maternity and parental leave may be unpaid or paid; paid leave can be total or partial, and payment may be available from government, private insurance programs or the particular employer. This range of options means that legal workplace employers have many factors to consider in developing parental and maternity leave policies. These factors include legal requirements, economic considerations, and human resource management issues. Legal workplace employers invest tremendous time, energy and resources into recruiting and developing good legal and support staff. The available evidence suggests that employers who foster an environment where lawyers who choose to have a family can be both devoted professionals and good parents, are rewarded by increased job satisfaction, morale, productivity and loyalty in their staff. It also enhances an employers public image and that of the entire legal profession. A written leave policy is a sign of the employer's commitment to its lawyers. By removing the uncertainty and anxiety that not having a policy may cause, written policies contribute to good communication and are a part of sound management. In drafting and implementing a written maternity and parental leave policy, the legal workplace is establishing its level of commitment to equality, equity and diversity. This document is presented in two parts. 1. Guidelines The guidelines are intended as a resource framework for legal workplace employers and employees. An overview of the law is provided to assist employers in understanding their obligations and for employees to understand their entitlements relating to maternity and parental leave. With respect to the legal requirements, there are three different areas of law: provincial labour standards which require that maternity and parental leave be provided (albeit unpaid). While the legal obligation under the Employment Standards Code does not apply to lawyers who do not meet the definition of employee in this legislation, there may nonetheless be a duty to accommodate under human rights legislation. federal employment insurance legislation which provides the payment of maternity, parental and sick benefits directly to qualifying employees; human rights legislation and case law, which takes a wider view of who is an employee and provides that discrimination on the basis of pregnancy, gender, sexual orientation, and marital status is unlawful. The second part of the guidelines provides guidance to assist employers in the drafting and development of maternity and parental leave policies to ensure the employers obligations and employees entitlements are met. The factors include eligibility requirements, benefits, and the impact of health insurance plans. Also considered are costs, procedural aspects, the impact of leave on work allocation, career advancement and other issues. 2. Appendix Sample Policy The Sample Policy is provided in the appendix as a tool to assist in the task of drafting a maternity and parental leave policy. The sample policy has been developed appreciating that legal workplace employers want to be made aware of the range of existing options while retaining the flexibility to craft a response which both complies with their obligations and meets their needs. In this respect, the Sample Policy is not to be seen as a prescribed "model" but rather a tool for assistance in drafting and implementing a maternity and parental leave policy. II. Overview of the Law relating to Maternity and Parental Leave Policies in Alberta 4

5 The following statutes are relevant when considering the range of leave policies applicable to childbirth and parenting: the Alberta Human Rights Act, R.S.A. 2000, c.a 25.5, (AHRA) and the Canadian Human Rights Act R.S.C. 1985, c. H-6 (C.H.R.A.). the Employment Standards Code, R.S.A. 2000, c. E 9 (ESC); the Employment Insurance Act, S.C. 1996, c. 23 (unofficial c. E-5.6)(E.I. Act); A. Alberta Human Rights Act The AHRA replaced the Human Rights, Citizenship and Multiculturalism Act and came into force October 1, The AHRA applies to legal workplace employers. No provisions in the AHRA or the Legal Profession Act, R.S.A. 2000, c.l 8, (L.P.A.) exempt the legal profession from the AHRA requirements. The sections that apply to maternity and parental leave are as follows: Section 6 deals with equal pay. Female and male employees must be equally compensated for similar or substantially similar work in the same establishment. Section 7 deals with discrimination regarding employment practices. It reads as follows: 7(1) No employer shall (a) refuse to employ or refuse to continue to employ any person, or (b) discriminate against any person with regard to employment or any term or condition of employment, because of the race, religious beliefs, colour, gender, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation of that person or of any other person. (2) Subsection (1) as it relates to age and marital status does not affect the operation of any bona fide retirement or pension plan or the terms or conditions of any bona fide group or employee insurance plan. (3) Subsection (1) does not apply with respect to a refusal, limitation, specification or preference based on a bona fide occupational requirement. Section 44(2) specifically includes discrimination on the basis of pregnancy as gender-based discrimination. Therefore, employees can seek protection under the AHRA for the discriminatory practices of their employers. Employers who are drafting and implementing maternity and parental leave policies should ensure their policies comply with these provisions. Compliance will serve to avoid both potential complaints and the possible civil liability and embarrassment caused by noncompliance. Case Law - Case law has assisted in the application of the AHRA in several respects: who is covered by the AHRA?; pregnancy as sex discrimination; the impact of health benefit plans; 5

6 the duty to accommodate protected employees who are adversely affected by the employer's discriminatory employment practices. 1. Who is an Employee? The AHRA provisions generally apply to employment relationships. Whether all types of lawyers are "employed" is a controversial threshold question. While there has been a successful human rights complaint against a law firm by a support staff member, the position of lawyers in firms is not as clear because of the nature of their activities and the variety of ways in which law firms are organized. Although the term "employment" may be defined in familiar ways, it is important to remember that it may be interpreted more expansively because courts give a broad and purposive interpretation to antidiscrimination provisions. Courts recognize that a review of the individual workplace may be required, that the nature of the relationship determines the rights, and that "employment" may be defined differently based on the legal issue involved. Certain forms of lawyering will more easily qualify as "employment" related activity than others. Corporate counsel, government lawyers, articling students and associates, and other salaried lawyers exhibit the traditional indicia of employment situations. American cases also support the conclusion that a relationship of employment exists between associates and the law firms which hire them. The situation with respect to partners is not as clear. Some argue that a relationship of "employment" does not exist between partners and that most partnership agreements lack the traditional hallmarks of this relationship. There is no decided Canadian or American case which deals directly with this issue. These arguments may be persuasive when classifying partners for the purpose of business association outcomes however, they may not so obviously carry the day when asking whether treating partners differently from other lawyers in the firm is lawful. This may be a discriminatory practice in human rights law. It is possible that the statutory definition of "employment" will be read in a large and liberal manner to apply to partnership relationships for human rights purposes, even though it might not be classified as such in other contexts. An argument could possibly be made as to discriminatory denial of services available to the public by applying the same reasoning from University of British Columbia v. Bert, [1993] 2 S.C.R Pregnancy as sex discrimination Case law has also developed respecting discrimination on the grounds of pregnancy, sex and marital status. In Brooks v. Canada Safeway ( Brooks ) 2 Dickson C.J.C. held that discrimination on the basis of pregnancy is a form of sex discrimination and held that those who bear children should not be economically or socially disadvantaged because of this fact. He noted at page 1243: Combining paid work with motherhood and accommodating the child bearing needs of women are ever-increasing imperatives. That those who bear children and benefit society as a whole thereby should not be economically or socially disadvantaged seems to bespeak the obvious. The court also recognized that pregnancy is a valid health-related reason for absence from the workplace and not to view pregnancy in this way goes against one of the purposes of anti-discrimination legislation at pages : 2 [1989] 1 S.C.R

7 If the medical condition associated with procreation does not provide a legitimate reason for absence from the workplace, it is hard to imagine what would provide such a reason. Viewed in its social context, pregnancy provides a perfectly legitimate health-related reason for not working and as such it should be compensated by the Safeway plan. In terms of the economic consequences to the employee resulting from the inability to perform employment duties, pregnancy is no different from any other health-related reason for absence from the workplace. 3. Health Benefit Plans The Court in Brooks recognized that employee benefit plans have increasingly become part of the terms and conditions of employment. When an employer decides to provide an employee benefit package, the schemes and their benefits must be administered and disbursed in a nondiscriminatory fashion. Therefore, an employer with a health benefits plan must compensate pregnant employees who are absent from the workplace for a valid health-related reason in the same way and at the same level as it compensates other employees on health-related leave. The case of Alberta Hospital Association et al v. Parcels 3 ( Parcels ), which considered and expanded upon Brooks, has had a significant impact regarding the issue of compensation during maternity leave in Alberta. In summary, Trussler, J. found that a portion of any maternity leave is health-related and that an employee on health-related maternity leave must be compensated like an employee on leave for any other health-related cause. As a result, a maternity policy must recognize that a portion of every maternity leave is health-related, and that the compensation must be like that of other employees on leave for any other health-related cause. There is comprehensive discussion of the impact of the Parcels decision in these Guidelines under the heading "Health-Related Maternity Leave." 4. Duty To Accommodate The case law also provides that an employer has a legal duty to accommodate employees who are directly or adversely discriminated against by employment practices. Canadian human rights law clearly recognizes that an employer has a legal duty to accommodate, up to the point of undue hardship, in cases where workplace policies or practices have a discriminatory effect on employees who are members of a protected group. 4 The Supreme Court decision in the Firefighters case(meiorin) 5 has been recently applied on this point by the Alberta Court of Appeal in UNA Local 30 v. Capital Health Authority. 6 Meiorin reexamined the distinction between adverse and direct discrimination by adopting a unified approach to the analysis and further solidified the duty of the employer to accommodate the affected individual to the point of hardship on the employer. As McLachlin C.J. expressed at page 44,...the essence of equality is to be treated according to one s own merit, capabilities and circumstances. True equality requires that differences be accommodated... 3 (1992), 1 Alta. L.R. (2d) 332 (Q.B.) 4 see Ontario Human Rights Commission and O Malley v. Simpson Sears Ltd., [1985] 2 S.C.R. 536; Alberta Human Rights Commission v. Central Alberta Dairy Pool, [1990] 2 S.C.R British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employee s Union (B.C.G.S.E.U.), [1999] 3 S.C.R. 3 6 (2001) 286 A.R. 178 (C.A.) 7

8 As David Lepofsky explained in his article, A Purposive Approach to the Duty to Accommodate under Canadian Anti-Discrimination Legislation 7, the legal duty to accommodate has developed to ensure employees enjoy equality of opportunity and full participation in employment. The Supreme Court has returned to explain undue hardship in Hydro Québec v. Syndicat des employé e s de techniques professionnelles et de bureau d Hydro Québec, section locale 2000 (SCFP FTQ), 2008 SCC 43, [2008] S.C.J. No. 44 This duty to accommodate has clear implications for those formulating and implementing maternity and parental leave policies. Consideration must be given to whether such policies accommodate those for whom they are designed and whether these policies directly or indirectly discriminate by imposing limits on the career advancement, compensation and benefits of lawyers because they are pregnant or have family commitments. Additionally, the Supreme Court of Canada has taken judicial notice that the primary responsibility for child care falls upon women lawyers notwithstanding their professional positions. 8 In summary, the case law tells us: human rights legislation may apply to an expanded notion of employment that may include partners; discrimination on the basis of pregnancy is sex related discrimination there is a general duty of an employer to accommodate employees who are pregnant and have child-rearing needs. compensation during the health-related maternity leave must be like that of other employees who are absent for other health-related causes. B. Employment Standards Code In general, the ESC applies to employed lawyers in Alberta 9. This includes Division 7, sections 45 to 53.1 that deal with maternity and parental leave. The Employment Standards Regulation, Alta. Reg. 14/97, s. 2(2)(h) does exempt the legal profession from the provisions of the ESC dealing with hours of work, and the records kept at the place of business regarding the hours of work. However, all other aspects of the ESC apply to employed lawyers. This is different from many other jurisdictions where the legal profession is explicitly exempted from employment standards legislation. Therefore, leave policies drafted for firms in Alberta may be quite different than those drafted for firms in other jurisdictions. The ESC speaks in mandatory terms for maternity and parental leaves for employees only. With respect to partners, it should be considered that while the definition of employee is more narrow than under human rights provisions, section 1(1) of the AHRA may render that more limited definition in the ESC inoperative. As a result, it may be that more than support staff, articling students and employed lawyers (ie: partners) will be covered under the ESC. Under the ESC, maternity leave is only available to employees who are pregnant or have given birth. Parental leave is available to either or both parents including adoptive parents of children under the age of 18., There are strict notice provisions for employees and employers. The length of Alberta s leave provisions are now in line with the federal Employment Insurance Act provisions which will be discussed in more detail later. Briefly, the ESC leave provisions are as follows: Can. Lab. L.J. 1 8 Symes v. Minister of National Revenue [1993] 4 S.C.R., The ESC addresses maternity and parental leave periods ie. Job protection; not benefit entitlement during that period 8

9 1. ESC Maternity Leave a. Eligibility and Entitlement: A full-time or part-time pregnant employee who has worked for an employer for at least 52 continuous weeks full or part-time is entitled to maternity leave without pay and reinstatement upon return. Adoptive mothers are not entitled to maternity leave. For a pregnant employee who as not worked for the employer for at least 52 consecutive weeks, human rights law requires the employer to accommodate the employee (unless the employer can establish undue hardship). This means that the employer cannot terminate the employment of the employee, or lay her off, reduce her hours of work, or make her resign because of pregnancy or childbirth. This means that an employer must provide a leave period for the employee which at least covers the health-related period associated with pregnancy and childbirth. Reasonable accommodation could of course involve a longer leave period to permit the employee s physical recovery and a period of bonding with the child. b. Length and Conditions of Leave: Under the Employment Standards Code, an employee who meets the eligibility and notice requirements is entitled to maternity leave without pay for a period not exceeding 15 weeks. Maternity leave can commence at any time 12 weeks immediately before the estimated delivery date. If the employee does not meet the eligibility requirement, the employer is nonetheless under a duty to accommodate pursuant to human rights laws and is required (unless the employer can establish undue hardship) to provide the employee with a leave period that is at least as long as the employee s health related reason for absence from work. A birth mother is required to take a leave period of at least 6 weeks after the birth of her child, unless she and her employer have agreed to an early resumption of employment and the employee provides a medical certificate which states that the resumption of work will not endanger her health. Pursuant to s. 53 of the ESC, if an employee resumes work in the 6 week period immediately after the delivery date, she is entitled, without further notice to the employer, to a period of leave sufficient to meet the 6 week requirement which would be charged against her remaining maternity (and/or parental leave) entitlement. For example, if an employee with her employer s approval resumes employment 2 weeks after the delivery date she could thereafter, without notice to her employer, take a further 4 weeks leave in order to meet the 6 weeks post-delivery requirement. If the employee does not resume work immediately following the end of the additional period, the employer does not have to reinstate the employee unless the failure to return to work was due to unforeseen or unpreventable circumstances. c. Employee s Notice to Commence Maternity Leave: An employee must give her employer at least 6 weeks written notice of the date she will commence her maternity leave. The employee is entitled to start her leave on the date specified. If requested by her employer, an employee must provide a medical certificate certifying that she is pregnant and estimating the delivery date. If the employee fails to give the required notice she is still entitled to maternity leave if, within 2 weeks after she ceases to work, she provides her employer with a medical certificate stating that she is not able to work because of a medical condition arising from the pregnancy and giving the estimated or actual delivery date. Employees must also advise their employers if they intend to share parental leave. 9

10 d. Employer s Notice to Commence Maternity Leave: If an employee s pregnancy interferes with the performance of her duties, an employer may give the employee written notice requiring her to start maternity leave any time within the 12 week period before the estimated delivery date. However, the employer is under a duty to accommodate. If there is alternative work that the employee can do, then this accommodation option must be offered first. 2. ESC Parental Leave a. Eligibility and Entitlement: A full-time or part-time employee who is a birth mother, parent or an adoptive parent who has worked for an employer for at least 52 continuous weeks is entitled to parental leave (in addition to maternity leave for birth mothers) without pay. However, if the employee does not meet the eligibility requirement, the employer is nonetheless under a duty to accommodate and is required (unless the employer can establish undue hardship) to provide the employee with a leave period that is reasonable in the circumstances. The best practice would be to provide the 37-week period. Alternatively, the reasonable period would depend on the nature of the work and the workplace. b. Length and Conditions of Leave: An employee who meets the eligibility and notice requirements is entitled to parental leave without pay: a) in the case of an employee entitled to maternity leave, a period of not more than 37 consecutive weeks immediately following the last day of maternity leave; (b) in the case of a parent, a period of not more than 37 consecutive weeks within 52 weeks after the child's birth; (c) in the case of an adoptive parent, a period of not more than 37 consecutive weeks within 52 weeks after the child is placed with the adoptive parent for the purpose of adoption. A birth mother may take maternity leave and some or all of the 37 weeks parental leave. Her parental leave must immediately follow the last day of her maternity leave. Parental leave may be taken by one parent only, or shared between two parents. The total combined parental leave cannot exceed 37 weeks. If parents are employed by the same employer, the employer does not have to grant parental leave to more than one parent at a time. However, every employer is under a duty to accommodate in relation to parental needs. If there is no undue hardship, an employer should endeavour to provide parental leave to both parents simultaneously if so requested. The following illustrate only some of the options for eligible employees: The birth mother takes 52 consecutive weeks of total leave (15 weeks maternity leave; 37 weeks parental leave). In this instance, the other parent would not be able to take any parental leave as combined parental leave cannot exceed 37 weeks. 10

11 The birth mother takes 2 weeks maternity leave prior to delivery and 13 weeks leave after delivery of her child. The other parent takes 37 weeks of parental leave immediately after the baby is born. In this case, both parents would be at home with the child for 13 weeks with the birth mother then returning to work and the other parent staying at home with the child for a further 12 consecutive weeks. The birth mother takes 15 weeks maternity leave and then 10 weeks parental leave, resulting in 25 consecutive weeks of total leave for the birth mother. The other parent, after the birth mother's parental leave is finished, commences 27 consecutive weeks of parental leave. The total combined parental leave is 37 weeks within a 52 week period. Adoptive parents decide to split their parental leave 50/50 and take it at different times. They are each entitled to take 18 ½ consecutive weeks at any time 52 weeks after the child has been placed. Parents, who work for the same employer, want to share their parental leave at the same time. Their employer does not grant this request (and is not required to do so). The parents would then have to decide whether they only wanted one parent to take the entire 37 consecutive weeks parental leave, or to share their parental leave at different times within the 52 week period after the child has been born (with the birth mother required to take her share immediately following the last day of her maternity leave). Parents, who work for different employers, want to share their parental leave at the same time. They are each entitled to take 18 ½ consecutive weeks together, but would have to take the parental leave immediately following the last day of the birth mother's maternity leave. Adoptive parents, who work for different employers, decide to share their parental leave at the same time so that they can both be at home with their recently placed 8 year old child. They are each entitled to take 18 ½ consecutive weeks together any time within 52 weeks after the child has been placed. c. Employee s Notice to Commence Parental Leave A birth mother who has given written notice of maternity leave is deemed to have also given notice of parental leave, unless the notice specifically indicates that it is not notice of parental leave. Employees who are eligible for parental leave, must give the employer at least 6 weeks written notice of the date the employee will start parental leave. Birth mothers who indicated in their maternity leave notices that the notice was not notice of parental leave, but then subsequently decided they wanted to take all or part of their parental leave entitlement must also give employers 6 weeks written notice of the date she will start parental leave. The employee is entitled to start the parental leave on the date specified. If the required notice was not given, a parent will still be eligible for parental leave if the medical condition of the birth mother or child made it impossible to give 6 weeks written notice or the date of the child s placement with the adoptive parent was not foreseeable. In such instances, the employee must give the employer written notice at the earliest possible time of the date the employee has commenced or will commence parental leave, and the employee is entitled to start parental leave on the date specified. 3. Job Protection for Maternity and Parental Leave With respect to both maternity leave and parental leave, no employer may terminate or lay off an employee once the leave has commenced unless the employer suspends or discontinues the business. At the end of the leave period the employer must reinstate the employee in the same or comparable 11

12 position at not less than the same wages and benefits. This provision does not apply in the case of a closure of the employer s business due to bankruptcy or Court Order. If the business has been suspended or discontinued during the employee s maternity or parental leave, the employee has hiring priority if the business starts up again within 12 months after the end of the leave. While the ESC provides only that reinstatement is to the wage and benefit level that had accrued to the employee at the time that maternity or parental leave started, human rights obligations require two things: If an employer provides benefits to an employee during sick leave or disability leave, a woman on the health-related portion of maternity leave must also receive those benefits. In other words, if the employer pays premiums for the employee s benefit package while the employee is on sick leave, then the employer must do the same for the woman during the health-related portion of maternity or parental leave. If an employee on sick leave continues to accrue vacation or sick leave credits, then so must the woman during the health-related portion of maternity or parental leave. - An employee s seniority should continue to accrue during maternity or parental leave. An employee should not be disadvantaged in relation to employment status because of maternity or parental leave. 4. Notice to Resume Employment After Maternity and/or Parental Leave The general rule is that an employee must give the employer written notice of the day the employee intends to return to work at least four weeks before the end of the employee s specified leave or four weeks before the end of the entitled leave, whichever is earlier. If the employee fails to provide the required notice, or does not report to work the day after the leave ends, the employer does not have to reinstate the employee unless the failure to notify or return to work was due to unforeseen or unpreventable circumstances. The notice requirement is lifted where an employee and employer have agreed to the employee resuming employment within the 6 week period immediately following the employee s delivery date. See Length and Conditions of Leave under the heading Maternity Leave in these Guidelines for the requirements and conditions with respect to early resumption of employment. 5. Notice to Terminate Employment After Maternity and/or Parental Leave Employees who do not wish to resume employment after their leaves, must give their employers at least 4 weeks written notice of their intention to terminate employment. 6. Agreements At Variance with the ESC The ESC clearly states that agreements which exclude the application of the provisions of the Act are against public policy and are void. Section 4 reads: An agreement that this Act or a provision of it does not apply or that the remedies provided by it are not to be available for an employee, is against public policy and void. 12

13 This section, which prohibits the contracting out of the ESC provisions, protects employees so that their statutory entitlements cannot be diminished by way of agreement. Attention should also be given to Section 125 of the ESC which deals with specific prohibitions under the Act as follows: 125. No employer or any other person may terminate or restrict the employment of or in any manner discriminate against an individual because the individual (a) has made a complaint under this Act, (b) has given evidence or may give evidence at any inquiry or in any proceeding or prosecution under this Act, (c) requests or demands anything to which the person is entitled under this Act, or (d) has made or is about to make any statement or disclosure that may be required under this Act. Employers should be aware of the following offences under the ESC: 1) under section 128, it is an offence to fail to reinstate an employee after their leave period; and 2) under section 129 it is an offence to violate the maternity and parental leave entitlements of employees under section 52. However, Section 3(1)(2) provides that an employer may provide an employee with greater benefits than required under the Act. The ESC provisions regarding maternity and parental leave apply to employed lawyers in Alberta. At a minimum, leave policies and practices of firms which employ lawyers must comply with these provisions. Many law firms recognize these as threshold standards which may be exceeded by providing, for example, continued dental and medical benefits as well as a top-up to E.I. benefits. While the ESC provisions do not apply to lawyers who are self-employed (i.e., cost-sharing arrangements, contract lawyers or partners), they may be used as guidelines to be considered when developing leave provisions for lawyers who may not be seen as "employees" for the purposes of this particular legislation. C. The Employment Insurance Act The E.I. Act undergoes frequent review and legislative change. The provisions of the E.I. Act discussed in these Guidelines are current as of October Before relying on the information detailed here, we recommend checking to determine if there have been subsequent amendments to the E.I. Act and/or its Regulations. Briefly, the relevant benefits under the E.I. Act are divided into maternity benefits, parental benefits and sickness benefits: Maternity benefits are available to birth mothers only for a maximum of 15 weeks. Parental benefits are available to either or both parents of biological or adopted children for a maximum of 35 weeks, and are in addition to maternity benefits for birth mothers. Sickness benefits may be used in addition to maternity and parental benefits and an employee can receive up to 65 weeks of combined maternity, parental and sickness benefits in one benefit period. These provisions apply to those who have been employed in insurable employment for at least 600 hours in the last 52 weeks or since the start of their last claim, whichever is shorter. Therefore, at this time at least, E.I. maternity and parental benefits are not available to lawyers such as partners, cost-sharing lawyers and contract lawyers who do not contribute E.I. premiums 13

14 unless they are self-employed people who register for EI, in which case they may also be eligible to receive maternity, parental and sickness benefits. 10 The top-up provisions under the E.I. Act will also be discussed in this section. 1. Types of Benefits a. Maternity Benefits A pregnant employee is entitled to 17 weeks of E.I. maternity leave benefits which may commence up to 8 weeks before the expected date of delivery. Benefits are paid for 15 weeks (17 weeks minus a 2 week waiting period). The general rule is that benefits are to be collected within 17 weeks of the actual week of confinement or week of expected confinement, whichever is later. However, where the child of the pregnancy is hospitalized, the 17 week period when benefits are paid can be delayed by the number of weeks the child is hospitalized up to 52 weeks. If an employee works while receiving maternity benefits her earnings will be deducted dollar for dollar from her benefits. b. Parental Benefits Additional benefits are available to either or both parents to remain at home to care for one or more newborn or adopted children. Parental benefits may be shared between both parents to a maximum benefit of 35 weeks and must be taken within 52 weeks of the birth of the child or children, or in the case of adoption, the arrival of the child or children at home. However, where the child of the pregnancy is hospitalized, the 52 week period when benefits are paid can be delayed by the number of weeks the child is hospitalized up to 104 weeks. Under the previous regulations, if two parents wished to share parental benefits they both served a 2 week waiting period. Now, only one 2 week period has to be served. Parents are also now able to retain some work attachment while receiving benefits. Parents can earn the greater of $50 or 25% of their weekly E.I. parental benefits, without a dollar for dollar deduction from their benefits; any earnings above this amount are deducted on a dollar for dollar basis. For a limited period of time, currently scheduled to end December 4, 2010, this allowance has been increased to the greater of $75 per week or 40% of benefits. As previously stated, the E.I. Act and its Regulations are frequently amended and as such should be consulted for not only these changes but any others that may occur prior to drafting a policy. Human Resources Development Canada maintains a helpful website regarding the E.I. Program at c. Sickness Benefits If the employer does not have a sick leave benefit or weekly indemnity benefit plan, EI Sickness Benefits may also be available to the pregnant woman for up to a total of 15 weeks if she is unable to work due to sickness, injury or quarantine. Sickness benefits may be used in addition to maternity and parental benefits so that an employee can receive up to 65 weeks of combined maternity, parental and sickness benefits in one benefit period. 2. Top-up Provisions 10 It should be noted, however, that a 2001 report of the Standing Committee on Human Resources Development and the Status of Persons with Disabilities recommends that the qualification for E.I. benefits become more flexible in order to enable a larger pool of parents, including self-employed parents, to qualify for maternity and parental leave benefits. 14

15 As of September 5, 1993 the E.I. Regulations were changed to allow an employer to supplement or topup maternity or parental benefits without the submission of a formal Supplemental Unemployment Benefits (S.U.B.) Plan to Human Resources and Skills Development Canada. Prior to 1993, unless an employer's formal S.U.B. Plan was filed with the department, any top-up benefits received by the employee were deducted dollar for dollar against the E.I. benefits received. Now, supplemental payments provided by employers for maternity and parental benefits are excluded from the formal S.U.B. program and are not deemed to be earnings (and therefore not deductible from E.I. benefits received) if two conditions pursuant to s. 38 of the Employment Insurance Regulations are met: a) the top-up plus the weekly E.I. benefits when combined do not exceed the employee's normal weekly earnings ; and b) the top-up does not reduce the employee's accumulated sick leave, vacation leave, severance pay or any other accumulated credits. It is essential the employer indicate in the Comments section of the Record of Employment that there is a top-up to benefits. Human Resources Development Canada recommends that a letter, confirming the top-up and conformance to the above conditions be attached to the Record of Employment. Employers must keep adequate records to show the effective date of the maternity or parental supplemental plan and that it meets the regulatory criteria. If this cannot be demonstrated to government officials during an audit, payments made by the employer to top-up E.I. maternity or parental benefits will be treated as earnings and will be deducted from E.I. benefits. The employer has the option to top-up E.I. benefits not to exceed the employee's normal weekly income. While there is a maximum taxable year income level for claimants receiving regular E.I. benefits, as of May, 2001 claimants who receive maternity, parental and sickness benefits are no longer subject to the benefit repayment (clawback) provisions. Depending on the sick/disability policy of the employer, a top-up for the health-related portion of maternity leave may be financed by the employer (self-insured) or through an insurer. Currently, for E.I. to allow a top-up from an insurer, the coverage premiums must have been paid solely by the employer. If the employee contributed to the premiums, any top-up from an insurer may be deducted as earnings from E.I. benefits received by the employee. In determining a maternity leave policy, the employer should thoroughly review its health-related insurance policy to determine the exact coverage for employees on health-related maternity leave. For a further discussion of the top-up during health-related maternity leave, see under the heading Health-Related Maternity Leave. A sound understanding of the legislation and case law will assist employers is drafting and implementing a maternity and parental leave policy. III. Considerations for Drafting and Implementing a Maternity and Parental Leave Policy There are many considerations in drafting and implementing a maternity and parental leave policy. These include eligibility for leave, type of leave (maternity, health-related maternity and parental leave), benefits, impact on promotion/partnership, transitional procedures and cost. A. Eligibility 15

16 Eligibility criteria are very important and include an assessment of who is covered by the policy, length of service to the firm, the frequency of leaves, whether frequency or leave taking will affect eligibility and whether certain forms of relationship are covered. 1. Partners, associates and other categories of employees A firm should determine whether all lawyers will be equally eligible for the leave and benefits under the policy regardless of their differing status with the firm: i.e, partner, associate, profit-sharing associate, cost-sharing associate or contract lawyer. Some categories may not be considered by their firms as employees and therefore treated differently under the policy. Employers should be aware that labour tribunals and courts have traditionally looked at substance over form and the actual employment relationship between the lawyer and the firm will govern, not the label attached to the lawyer. Legislative provisions in the ESC and E.I. Act appear to apply to employed lawyers and not to apply to traditionally self-employed professionals such as partners or independent contract lawyers. Through the application of human rights legislation and the duty to accommodate, firms may not have the latitude to deal with categories of lawyers differently. The Sample Policy attached addresses this uncertainty by leaving the firm a considerable amount of discretion in this regard. 2. Length of Service to the Firm Most firms provide benefits as a part of a long term investment in their lawyers, and may require a minimum employment period before a lawyer is eligible for benefits under their leave policy. The eligibility requirements are based on the premise that an employee with less than a certain period of time does not have a sufficient connection or investment in the firm. Under the ESC an employee must be employed for at least 52 continuous weeks to be entitled to the 15 weeks unpaid maternity leave and/or the 37 weeks unpaid parental leave. However, if the employee has been with the firm for less that the 52 weeks, E.I. parental and maternity benefits may still be available to the employed lawyer if they have worked for the minimum insurable period, (currently 600 hours in the last 52 weeks or since the start of their last claim, whichever is shorter). The impact of Parcels must also be considered as the employee may have entitlements under the employer's health leave policy during the health-related portion of maternity leave, even though she has not been employed for 52 weeks. For example, many employer group benefit insurance plans only require a three month probationary period. A longer period for maternity leave in such cases may be viewed with suspicion if ever tested by the Courts. As most leave policies are intended to benefit lawyers with a long term commitment to the firm, the firm may include a provision requiring a lawyer to return to the firm and to remain with the firm for a stated period of time following a paid leave. The Canadian Bar Association in its Task Force Report on Gender Equality in the Legal Profession recommends that a lawyer remain with the firm for a minimum of 12 months full-time (or part-time equivalent) following a paid leave. It also suggests that a lawyer who resigns prior to this time may be required to repay benefits on a pro rata basis, except benefits paid during the health related portion of the maternity leave. 3. Frequency of Leave A firm may consider whether their policy should deal with the issue of the frequency of leave. After taking a maternity and/or parental leave, when is a lawyer eligible to take another leave either of the same or a different type? The statutes provide minimal guidance. According to the ESC eligibility requirements, an employee who has worked 52 weeks is entitled to 15 weeks unpaid maternity leave and/or 37 weeks 16

17 unpaid parental leave. These requirements do not encompass additional benefits such as a paid leave, nor do they apply to self-employed lawyers. 4. Common-law and same-sex relationships A firm should ensure that its leave provisions are extended to common-law and same sex couples. Section 7 of the AHRA prohibits an employer from discriminating against any person on the basis of marital status and sexual orientation. It is likely that common-law spouses would be covered by the human rights provisions and entitled to the benefits of most leave policies on similar terms and conditions as married people. Most workplace policies that cover common-law relationships require a minimum cohabitation period before the common-law spouse is eligible under the benefits plan. B. Leave Portions of the Policy Leave policies should differentiate between two types of leave periods: 1) maternity leave, available to female lawyers, whether paid or unpaid; and 2)parental leave, available to both male and female lawyers, whether paid or unpaid. 1. Maternity Leave Maternity leave is available only to female lawyers who are pregnant and have given birth. The required maternity leave period under the ESC for employed lawyers is 15 weeks unpaid job-protected leave. Firms must decide if the number of weeks granted to their employed lawyers for maternity leave should be extended to partners, cost-sharing lawyers and contract lawyers. Also, firms must decide whether any portion of the maternity leave period is paid leave. Most firms provide some portion of the leave as paid leave for a variety of reasons. For instance, the leave-taking lawyer often has accumulated work-in-progress and the accounts receivable will continue to benefit the firm during the leave period. As well, the lawyer's clients are left in the firm's care during the absence. In addition, a paid leave demonstrates the lawyer is a valued member of the firm. Certain features of maternity leave should be considered, including what portion of the leave is healthrelated and what portion is not, cumulative maternity leave, pregnancy-related illness and unpaid maternity leave. a. Health - Related Maternity Leave The health-related portion of a maternity leave is where the woman s health meets the employer s normal rules for being away from work for health reasons. As indicated earlier, the decision in Parcels significantly affects the issue of compensation during maternity leave. Parcels makes a period of healthrelated maternity leave a matter of law in Alberta and provides that individuals must continue to be compensated during the health-related portion of maternity leave like other individuals on leave for other health-related causes. Parcels did not give fixed guidelines for the length of a health-related maternity leave. The decision found that this is a matter for an individual medical determination. Some employers use the 6 weeks in section 46(2) of the ESC as a guideline for the health-related portion of maternity leave. However, the use of 17

18 such a fixed period may conflict with the Parcels decision. In reality, this period involves a time of disability from childbirth which varies according to individual circumstances. For instance, a Caesarean birth may involve a longer disability period than a natural delivery. In the event of uncertainty, a medical certificate from the attending physician should be obtained to clarify the length of health-related maternity leave. As a guideline, the College of Physicians and Surgeons of Alberta adopted the following resolution in June, 1992: THAT, for a normal pregnancy, a reasonable health-related absence from the workplace might be a period of up to 13 weeks, including two weeks before the expected date of delivery. In summary, Parcels states that an employee on health-related maternity leave must be compensated like any other individual on leave for a health-related cause. Employers must compensate individuals on maternity leave for that period that is health-related like those who are on leave for other health reasons in accordance with their sick leave policy. Compensation during the health-related portion of maternity leave should be extended similarly to employed lawyers and partners if the sick leave/disability policy is extended to both levels of lawyer. The method of compensation and who pays may differ depending on the circumstances. b. Impact of health insurance benefit plans There are two ways that a firm may handle their sick/heath-related leave policies: 1) a firm may be selfinsured; and 2) a firm may carry sick leave coverage through an insurer. If a firm is self-insured for disability and sick leave coverage, it is directly responsible for compensating lawyers during the health-related portion of the maternity leave in accordance with the firm's sick leave policy. If the lawyer is an employee, and if the employee-lawyer is in receipt of EI maternity benefits, the firm will be able to meet its human right obligations by topping-up the EI maternity benefits. It should be noted that according to EI legislation, the woman retains the right to choose when to commence EI maternity benefits, including as late as the week of confinement. If a woman chooses to apply for EI maternity benefits during the week of confinement, (so that she maximizes her EI benefits after the date of delivery) but she has a health-related reason for being absent from work prior to the date of delivery, she should be able to access her sick leave or disability benefits prior to the date of delivery. If the employee s health-related reason for being absent from work extends beyond the 15 weeksof EI maternity benefits, the woman should then return to the regular sick leave or disability plan, and the firm s top-up program should end. Since EI parental benefits are available to the mother or the other parent, it would be discriminatory for the firm to require the mother alone to use up EI parental benefits, while the firm merely tops up those benefits. 11 In general, an employee is not entitled to receive both EI benefits and compensation from an employer s sick leave plan. If this occurs, the employee would have to pay back EI. However, according to the EI legislation, an employee may receive top-up to EI maternity benefits with no requirement to pay back any EI benefits, as long as certain conditions are met. The conditions are that the top-up plus the EI benefits cannot exceed the claimant s accumulated sick leave or vacation leave credits or other credits (section 38 EI Regulations). Top-up of the EI benefits does not apply to lawyers who are not employees, since only employees are eligible for EI benefits. If the firm carries coverage for disability and sick leave with a private insurer, the policy should be thoroughly reviewed to determine the coverage offered during the health-related portion of maternity leave. The insurer should cover compensation during the health-related portion of the maternity leave in 11 The other parent would thereby be deprived of the opportunity to use the EI parental benefit. Such employer policy was held to be discriminatory in an arbitration decision, UNA, Local #15 v. St. Mary s Hospital Camrose 18

19 accordance with the sick leave policy. The Canadian Bar Insurance Association (C.B.I.A.) has confirmed the Bar Group Policies conform with the Parcels decision and the policies do not differentiate between disabilities caused by maternity or any other illness. If there is coverage through an insurer, can the employee claim E.I. maternity benefits and the balance of salary be paid to the employee by the insurer as a top-up? The answer is a qualified yes. The premiums paid for the sick leave coverage must have been fully financed by the employer. The employee must not have contributed to the premiums paid for the coverage. If the premiums are paid in full by the employer, the top-up will be deemed to come from the employer. The insurer will be deemed to be the administrator of the top-up portion of salary on behalf of the employer. To claim the top-up, the employee must bring in their E.I. payment stubs to the employer, who passes these on to the insurer. The insurer then pays the employee. The employer must keep accurate records of the E.I. and top-up amounts so that, if audited by E.I., these top-up payments will not be deemed earnings, thereby reducing the employee's E.I. entitlement. Currently, the Employment Insurance Commission's policy is that employees who contribute to sick leave coverage premiums have a vested right in the reserve of funds subject to s. 37(2)(h) of the E.I. Regulations. Therefore, during the health-related portion of maternity leave, the insurer would pay 100% in accordance with the plan and no top-up would be allowed. Where the premiums are contributed by the employee, any top-up paid by an insurer would be deducted as earnings against the E.I. benefits received. Therefore, when determining a parental and maternity leave policy, it is important to review the insurance coverage carried by the employer to confirm the benefits available to employees during a health-related maternity leave. Consideration should also be given to the availability of an E.I. top-up. Is it advantageous or will the top-up only result in a deduction from employee's E.I. benefits, thereby defeating the purpose of the coverage? The firm should also check its insurance coverage to make sure its top-up is not considered income which is subject to claw back by the insurer under its usual integration of benefits provisions. Otherwise the amount of the top-up would be lost to offset the insurance benefits during the health-related absence from work. Lawyers such as contract or cost-sharing lawyers who are not members of a group plan may carry their own policies for short term disability/sick leave. A consultation with the insurer or agent will reveal whether there is coverage for the health-related portion of maternity leave. If there is compensation during other health-related leaves of absence, there must be coverage for the health-related portion of maternity leave on the basis of Parcels. c. The Portion of the Maternity Leave Which is not Health - Related The ESC requires that a total of 15 weeks unpaid maternity leave be extended to employees. Therefore, in addition to the health-related portion of maternity leave, an employer must provide a further non-healthrelated maternity leave for a combined total of up to 15 weeks for employed lawyers. For example, if the health-related portion of maternity leave is 6 weeks, there will be an additional period of 9 weeks nonhealth-related maternity leave. It is the individual firm's prerogative whether this additional period is paid or unpaid. A firm may choose to provide employees with a top-up of their pay for the 15 week maternity leave period, or a portion thereof, by taking advantage of the provisions for top-up to E.I. benefits. The E.I. top-up provisions were earlier discussed under the heading Top-up Provisions in these Guidelines. The E.I. provisions are not available to partners or other self-employed lawyers. Firms must decide to what extent they will provide paid maternity leave (over and above the health-related portion of maternity leave) to their partners. Most firms recognize that the period of health-related maternity leave is insufficient to adjust to the demands of childbirth and child care, and usually offer some extended paid period to a partner on maternity leave. 19

20 Not all firms have the resources or desire to extend the full 15 week period of maternity leave as paid leave. The period of maternity leave that is paid leave may be less than 15 weeks. The entitlement for unpaid leave is still 15 weeks and the employed lawyer would still be entitled to the remaining portion of the 15 weeks as unpaid leave. d. Pregnancy-Related Illness Pregnancy-related illness refers to an illness during pregnancy, before delivery, or after the maternity leave period. Most maternity leave policies do not address benefits or compensation in the event of pregnancy-related illness, leaving this contingency to be dealt with through the firm's disability and sick leave policy. The C.B.I.A. has confirmed that there is coverage in the Bar Group policy for pregnancyrelated illness before and after the maternity leave period. e. Unpaid Maternity Leave Firms may wish to address the possibility in their policies that individuals employed with the firm for less than 52 weeks may not meet the minimum eligibility requirements. This may occur particularly with new associates or articling students, and is least likely to occur in respect of partners. These employed lawyers may still qualify for E.I. benefits of 17 weeks for maternity leave (less the two week waiting period) and 35 weeks for parental benefits. It is the firm's prerogative whether this leave is offered as an unpaid leave of absence from the firm. The impact of Parcels should be considered, as the employee may have entitlements under the employer's health leave policy during the health-related portion of maternity leave even though they have not been employed for 52 weeks. 2. Parental Leave Both male and female employees are entitled to parental leave under the ESC and can avail themselves of the insurance benefits under the E.I. Act. It is now therefore possible that an employed male lawyer to notify his employer of his intention to take parental leave. A female employed lawyer is now entitled take parental leave in addition to maternity leave. Firms can be prepared for their employees availing themselves of their parental leave entitlements by having well thought-out and comprehensive leave policies. C. Benefits Should regular benefits be provided to partners and associates while they are on leave? Most leave policies provide for the continuation of benefits as well as the accumulation of salary increases and vacation pay as long as the employee maintains their regular contribution to their benefits. This is the approach taken in the sample policy attached. The E.I. regulations provide that a top-up to salary must not reduce the employee's accumulated sick leave, vacation leave or severance pay or any other accumulated credits. The Canadian Bar Insurance Association's policies allow for the continuation of benefits while on maternity leave or while on sabbatical leave at the employer's discretion. The AHRA and the ESC do not require benefits to continue during maternity or parental leave as legislation in some other provinces does, such as Ontario. However, the Parcels decision does require that whatever benefits are provided to an employee during an absence for a health related reason, must also be provided during an absence during or after a pregnancy for health related reasons. The decision for the continuation of benefits must be on the basis of precluding discrimination; that is, the treatment for the continuation of benefits must be the same for all leaves of absence - maternity, parental, or otherwise. 20