I’m nearing the end of my pregnancy. I don’t want to be at work any more because I have a public-facing position and I’m concerned about the health of my baby during the COVID-19 pandemic. What happens if I take medical leave now? Does it start cutting into my 12 months of maternity leave once the baby is born? Can I apply for employment insurance?
The First Answer
Steven M. Boorne, lawyer, HHBG Employment Lawyers, Vancouver: A pregnant woman, depending on her specific circumstance, has two options under the employment insurance benefit program, which includes maternity leave and medical leave. In addition, an employer may also be required to accommodate a pregnant employee.
Maternity leave rules vary by province. Generally, employees qualify for the standard 15 weeks followed by 35 weeks of parental leave. As soon as maternity leave is taken, the clock starts ticking.
Medical leave is another option. Last week, the federal government changed the rules for medical leave eligibility to include not only employees who are unable to work because of illness, but also those under legal quarantine. So, a healthy pregnant mother, who is not required to be under quarantine, will not qualify. There are always exceptions. A doctor must sign off if there are any health concerns.
The last option is accommodation. An employer has a duty to provide a safe workplace. If a pregnant woman has legitimate health concerns, she can approach her employer without fear of repercussions, asking for modification to her work environment. This could be anything from moving to a different area where there is minimal public contact or working remotely. An employee should also inquire about any short-term company sickness plans or if there is an option to take leave without pay.
The legal landscape is shifting quickly on these issues. At this time, if an employee wants to take a leave from her job because of concerns about her unborn child, and she cannot be accommodated in the workplace, or does not qualify for medical leave with EI benefits, she will have to rely on maternity leave, which cannot be extended beyond the current maximums.
The Second Answer
Balraj K. Dosanjh, labour and employment lawyer, Cavalluzzo LLP, Toronto: For many employees, leave of absence entitlements, such as medical leave or maternity leave, are outlined in employment contracts, workplace policies or in collective agreements. These often incorporate the employment insurance scheme for pregnancy leave entitlements. Generally, an authorized medical leave should not cut into your pregnancy leave entitlements.
As a pregnant individual, you can apply for EI pregnancy benefits within 12 weeks of your due date. You can only collect EI pregnancy benefits for 17 weeks (a mandatory two-week waiting period, plus 15 weeks of benefits) and the time you take off before the birth will reduce the amount of such benefits available to you following the birth.
In addition to pregnancy benefits, you may be eligible to choose between standard parental benefits (maximum of an additional 35 weeks for one parent, at a benefit rate of 55 per cent) or extended parental benefits (maximum of an additional 61 weeks for one parent, at a benefit rate of 33 per cent), each of which follow the cessation of your pregnancy benefits. Finally, there are also parental benefits available for the parent that is not giving birth.
You also asked about commencing medical leave prior to the birth. If you plan to commence a medical leave under your workplace benefit plan, the plan should outline eligibility requirements and the benefits duration.
If your workplace does not offer short-term illness benefits, you may apply for EI sickness benefits provided that you are unable to work because of illness, sickness or quarantine. A claim for sickness benefits must be based on a medical reason beyond you being pregnant but will include medical complications related to the pregnancy.
You are required to provide proof that you cannot work because of health reasons by way of a medical certificate. However, a medical certificate is not required if you cannot attend work because you are either required to or it is recommended that you place yourself under quarantine. In such cases, Service Canada is also waiving the one-week waiting period for sickness benefits.
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