Canadian Employment Law Today

with Colin Gibson Ask an Expert Harris and Company VancouVer Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Canadian HR Reporter, a Thomson Reuters business 2014 2 | October 1, 2014 Answer: e legal obligations an employer owes to an employee who is on pregnancy or parental leave are determined by the ap- plicable employment standards and human rights legislation, as well as the contract of employment or collective agreement. Employment standards legislation in all Canadian jurisdictions provides employees on pregnancy or parental leave with certain protections. In Ontario, for example, s. 51 of the Employment Standards Act, 2000, re- quires an employer to continue benefits for employees on pregnancy or parental leave, unless the employee elects in writing to cease participating. e benefits that must be con- tinued include pension, life insurance, acci- dental death and dismemberment, extended health, dental, and any other prescribed ben- efits that are related to employment. e em- ployer must continue to pay its share of the benefit premiums, unless the employee gives written notice that the employee doesn't in- tend to pay the employee's share. Employ- ees on pregnancy or parental leave are also entitled to continue to earn credits toward length of employment, length of service, and seniority during their leave, and to continue to accrue service for the purpose of calculat- ing vacation entitlement. In British Columbia, s. 54(2) of the Em- ployment Standards Act prohibits an em- ployer from changing conditions of employ- ment of an employee who takes pregnancy or parental leave without the employee's consent, and s. 56(1) deems the employee's service to be continuous when calculating vacation and severance entitlements, and for the purposes of any pension, medical or other plan beneficial to the employee. Sec- tion 56(2) requires an employer to continue to pay its normal share of the benefit and pension plan premiums for an employee on pregnancy or parental leave, unless the em- ployee fails to pay her normal share. Section 56(3) of the B.C. act also specifies that employees are entitled to all increases in wages and benefits that the employee would have been entitled to had the pregnancy or parental leave not been taken. In BCTF v. British Columbia Public School Employers' Assn., the B.C. Court of Appeal ruled that teachers on pregnancy and parental leaves were entitled to be credited with experi- ence for salary increment purposes while on leave as if they had been teaching during such periods. Human rights legislation prohibits dis- crimination in employment on the basis of a number of prohibited grounds, including sex and disability. Accordingly, if an em- ployer provides its employees with benefit packages, it must do so in a non-discrimi- natory way. For example, in Renfrew County and District Health Unit v. Ontario Nurses' Assn. (Robertson Grievance), an arbitrator determined that a refusal by an employer to provide a nurse with pregnancy supplement wages constituted discrimination. In that case, the employee was required by her doc- tor to go on bed rest 18 weeks into her preg- nancy. e employee took unpaid sick leave for the next 20 weeks, until the official com- mencement of her pregnancy leave. Un- der the terms of the collective agreement, employees were entitled to supplementary pregnancy leave pay based on their average income in the 20 weeks immediately pre- ceding the start of the pregnancy leave. On the basis that the employee did not receive pay during those 20 weeks, the employer denied this supplementary pay. e arbi- trator ruled that complications from the employee's pregnancy had prevented her from working, and that it was discrimina- tory not to provide her with the pregnancy leave top-up pay. e applicable employment contract or collective agreement may also require an employer to provide additional benefits to employees who are on pregnancy or pa- rental leave. An example would be a wage 'top-up,' to supplement employment insur- ance benefits. e law permits the parties to enter into such agreements, so long as the contractual provision meets or exceeds any minimum entitlements under the applicable legislation. Employers should carefully check the ap- plicable legislative and contractual require- ments to determine the nature and level of benefits that must be provided to employees on pregnancy or parental leave. Maternity leave requirements Question: What is an employer legally required to provide to employees who are on maternity leave, such as vacation accrual, benefits, or sick leave? Calculating payroll to determine if severance pay is required Question: Where there is a requirement for severance pay for dismissed employees if a company's payroll is of a certain size, how is this calculated if the size of the payroll fluctuates? Answer: Employment standards statutes in all Canadian jurisdictions contain termina- tion provisions requiring employers to provide employees who are dismissed without cause with a specified minimum amount of notice of dismissal, compensation for length of service, termination pay and severance pay, depending on the circumstances. Additional requirements may apply where there is a "group termination" — where the employer dis- misses more than a certain number of employees within a specified period. ese statutory termination provisions are different in each province, and employers must therefore check the rules carefully in the jurisdictions in which they operate. In Ontario, the Employment Standards Act, 2000, requires an employer to provide statutory termination notice or termination pay in most situations where an employee is dismissed without cause. e amount of termination pay or notice that is required is between one and eight weeks, depending on the employee's length of service. e act requires additional notice or termination pay in mass termination situations, where the employment of 50 or more employees is terminated at an employer's establishment within a four-week period. In addition to these termination pay requirements, Ontario's act imposes additional "severance pay" obligations on employers in situations where an employee has worked for the employer for five or more years, and where the employer either has a payroll of at least $2.5 million, or has severed the employment of 50 or more employees in a six-month pe- riod because all or part of its business has closed. e method for determining whether an employer meets the $2.5 million threshold is governed by s. 64(2) of the act. Under that provision, an employer is considered to have a payroll of $2.5 million or more if: • e total wages earned by all of the employer's employees in the four weeks that ended with the last day of the last pay period completed prior to the severance of an employee's employment, when multiplied by 13, was $2.5 million or more, or • e total wages earned by all of the employer's employees in the last or second-last ask an ExpErt on page 7 »

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