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The Question

I am 20 weeks pregnant and have been working full-time throughout my pregnancy during the pandemic. But in the past two weeks, there have been six new COVID-19 cases at my workplace. I am scared to go to work. What are my options? Am I eligible for EI sickness benefits? If I take unpaid time off from work until the pandemic gets better, will this affect my maternity leave benefits?

The First Answer

Alexis Radojcic, associate lawyer, Ryan Edmonds Workplace Counsel, Toronto

Depending on where you work, your employer may have to report workplace-related COVID-19 cases to public-health officials. If your employer is not complying with public-health guidelines and you believe the workplace is unsafe, you may have a right to refuse unsafe work under occupational health and safety legislation. However, that recourse may not be available if the new cases arose from community transmission and your employer is otherwise public-health compliant.

You have a few options to hasten your exit from the physical workplace.

First, subject to your employer’s approval, you can take accrued vacation for a brief respite.

Second, while EI sickness benefits are inapplicable, you will be eligible for EI maternity and parental benefits. Depending on where you work, you can start maternity leave and receive benefits many weeks before your due date. For example, in Ontario, maternity leave can start up to 17 weeks before your due date.

Third, it’s no secret that COVID-19 is particularly dangerous for pregnant women in their third trimester. Given the health implications, reasonable accommodation under human rights law may allow you to work from home if your doctor supports the request and your employer is agreeable.

We don’t recommend taking unpaid time off unless it’s “job-protected,” where the employer is required by law to re-employ you in the same or a comparable position upon your return. Any ad hoc leave of absence may not provide adequate job protection, in which case you may put your job security at risk.

The Second Answer

Shibil Siddiqi, employment and human rights lawyer, Progressive Barristers, Toronto

Physically going into the workplace during a global pandemic is understandably a scary experience, especially during pregnancy. Legal options for working from home or taking a leave of absence, however, depend on an assessment of the nature of the work and the health risks involved.

COVID-19 variants of concern have, by many accounts, increased the risk of serious illness and death for pregnant women. Your doctor is best situated to assess your health risks.

You may have several options available to you provided your doctor believes you are at heightened risk, and that COVID-19 mitigation measures in the workplace do not adequately address your health risks. You should carefully review any leave provisions in your employment contract.

In Ontario, under the Human Rights Code, your employer must accommodate your pregnancy-related needs to the point of undue hardship. This may include allowing you to work from home if your job can be performed remotely. If not, you can ask for an unpaid leave.

You may be entitled to EI sickness benefits if your doctor believes you are unable to go into the workplace for medical reasons and if you have enough insurable hours. Until Sept. 25, 2021, you will require only 120 insurable hours instead of the usual 600.

If your doctor recommends that you self-isolate during pregnancy, you may be entitled to three employer-paid sick days, and an indefinite unpaid job-protected leave under Ontario’s Infectious Disease Emergency Leave regulations. Unpaid leaves are set to expire on July 2, 2021. Your employer may be required to continue an unpaid leave as an accommodation if the medical necessity continues to exist.

An unpaid leave should not affect your eligibility for EI maternity or parental benefits. However, receiving EI sickness benefits can reduce the maximum weeks you get for parental benefits. Based on when and if you commence your leave, you should speak to Employment and Social Development Canada about the potential impact on your EI benefits.

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