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The question

I am in my eighth month of maternity leave but my husband’s hours have been cut back and I’m realizing that I need to go back to work early. My employer says that he doesn’t have enough work available to bring me back full time. Is he legally obligated to accommodate my request to return early? I’m not feeling good about my job prospects otherwise, and I’m worried that picking up work on the side will just reduce my mat leave payments.

The first answer

Busayo A. Faderin, senior associate lawyer, Monkhouse Law, Toronto

It is absolutely possible to return from maternity leave early and it is the decision of the employee on whether to do so. What is required, however, is that the employee provide their employer with at least four weeks' written notice of the date they wish to return to work. Once the notice has been given, the employer is legally obligated to honour the request.

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Under employment law, your employer must reinstate you to the position you held prior to your leave, if it exists, or to a comparable position if it does not. Unfortunately, the COVID-19 pandemic has affected many businesses and workers alike, so it is quite possible that your workplace has undergone changes while you have been on leave. If your position as it was no longer exists, then the question is whether the new position you are being offered is comparable. I would recommend you try to get more information about what changes have been made while you have been on leave. Does your position still exist? Are others in your position working full-time hours? What are the alternative positions?

You should discuss your disagreement with the reduced hours with your employer and your expectations that you would be returning to your full-time role based on the employment standards act of your province. If they refuse to return you to your previous role or do not offer you a comparable role, you could seek a constructive dismissal claim and/or potentially a human-rights discrimination claim. It is advisable that you speak with a lawyer or legal professional for legal advice about your unique circumstances and the strength of any potential claims.

The second answer

Alison Longmore, partner, Jewitt McLuckie & Associates, Ottawa

In order to end your parental leave early, most provincial employment standards legislation requires you to provide written notice to your employer. For instance, in Ontario, the Employment Standards Act requires at least four weeks' written notice. In addition, employers are typically required to return employees to the same or comparable position they held prior to their leave and altered hours of work are a significant factor to consider in determining whether a position is comparable. Your employer may argue that, for legitimate business reasons including a reduction or elimination of hours because of COVID-19, a full-time position is no longer available. Given the complexities, if your employer refuses to let you return to work or to reinstate you to your former or comparable position, you should speak to a lawyer about whether you can file a claim with the applicable provincial labour standards office or a human-rights complaint.

If you obtain another job while you are receiving federal EI parental benefits, you are allowed to keep 50 cents of your EI benefits for every dollar you earn, up to 90 per cent of the weekly insurable earnings used to calculate your EI benefits. Any money earned above this threshold will be deducted dollar for dollar from your EI benefits. For instance, if you receive $500 a week from EI and earn an extra $200 a week, $100 will be deducted from your EI benefits so that you can keep $400 from EI as well as your $200 in earnings.

Have a question for our experts? Send an e-mail to NineToFive@globeandmail.com

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