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The question

My husband and I work in Manitoba. We are planning for our first child, and want my husband to take parental leave to stay home with the child after the first month, when I would go back to work. His employer does not provide paid parental leave, but it does provide a top-up for maternity leave.

Our question: Is it legal for an employer to provide a maternity leave top-up but not parental leave top-up? We realize the leaves are distinct, but this seems like a discriminatory policy that limits the options of both men and women with regard to child care.

The first answer

Daniel Lublin

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Partner, Whitten & Lublin Employment Lawyers, Toronto

The federal government provides employment insurance benefits for up to 18 months of combined maternity and parental leave. However, there is a big difference between maternity leave and parental leave. Only mothers who give birth, including surrogate mothers, are entitled to maternity leave benefits. Parental leave benefits are provided to parents who are caring for a newborn or newly adopted child.

Employers are not required to compensate mothers or parents who leave work and claim either maternity or parental leave. However, some companies have elected to implement top-up policies, which provide for supplemental payments over and above any federal employment insurance that the government provides.

It is not discriminatory to provide top-up payments only to mothers who gave birth and take maternity leave but not to fathers who wish to take parental leave, as fathers are not eligible for maternity leave benefits anyway. However, an employer cannot provide mothers who give birth with a top-up during a parental leave, but not provide the same top-up payment to fathers if they elect to take parental leave.

In other words, an employer can choose to provide supplemental top-up benefits to new mothers who take maternity leave but not fathers who are not eligible for maternity leave. But if that employer offers to provide top-up payments during a parental leave period, then it must make those benefits available to everyone who is entitled to take a parental leave, including fathers.

The second answer

Bruce Sandy

Principal, Pathfinder Coaching & Consulting, Vancouver

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Larger and more progressive private companies and unionized public-sector organizations often provide top-ups for parental leave and maternity leave as part of a negotiated benefit package, and as incentive to recruit and retain staff members. Smaller private companies may find providing top-up compensation packages too onerous financially, especially at startup and early development phases.

If you and your husband have decided that he will take paternal leave after you take one month of maternity leave, and this is too much of a financial burden, then you may want to rethink if you should be the one to stay home with the new baby and receive the top-up to your maternity leave. You may want to be flexible about your decision since many mothers decide after giving birth that they want to take a longer maternity and parental leave.

If equitable support for maternity and parental leaves and top-up compensation are very important for you and your husband, then this may become a consideration when either of you are considering future employment and employers.

Got a burning issue at work? Need help navigating that minefield? Let our Nine To Five experts help solve your dilemma. E-mail your questions to ninetofive@globeandmail.com

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