THE QUESTION
I found out that I was pregnant while in the interviewing stage with the company. It was a long hiring process and I started work when I was already three months along. I’ll be six months pregnant by the time I reach the end of my three-month probation. I’m worried that my employer will find some other reason to fire me during probation if they find out I’m pregnant. It’s fully remote, so I could hide my bump until the end of probation to play it safe. But I feel dishonest about not disclosing the pregnancy sooner. What are my rights, and what do you think I should do?
THE FIRST ANSWER
Alia Besharat, employment lawyer, Monkhouse Law Employment Lawyers, Toronto, Ont.
In short, employees are not required to disclose information relating to pregnancy, either to a current employer or during a job interview.
From a legal perspective, you only need to give your employer two weeks’ notice, in writing, that you will be taking maternity or parental leave. Employers do have a duty to accommodate pregnancies provided they are aware of it. That said, the earlier you let them know, the more time you and your employer can work together to plan for the leave and your eventual return. Upon your return from parental leave, your employer also has an obligation to reinstate you in the same job or a comparable one.
If you do end up being terminated and can prove that the termination was as a result of being pregnant, your employer will be liable to pay you damages pursuant to the Ontario Human Rights Code. If you are terminated within your probationary period, you can still make a claim to the Human Rights Tribunal of Ontario if it relates to a violation of the code.
One thing to note is that in Ontario the period to qualify for parental leave is 13 weeks from your first day of employment. However, those 13 weeks do not have to be active. In other words, you can be laid off, on vacation or on another leave during all or part of that 13-week period. Always be sure to carefully check your employer’s workplace policy as it relates to parental leaves.
THE SECOND ANSWER
Nicola Watson, lawyer, Pink Larkin, Halifax, N.S.
When an employer hasn’t alleged that it has “just cause” for dismissing an employee, the law typically does not require them to provide the reason for dismissal. As a general rule, an employer can dismiss an employee at any time and for any reason that is not discriminatory (or otherwise illegal) upon providing notice or pay-in-lieu of notice in accordance with the applicable employment standards legislation and employment contract.
Both human rights and employment standards legislation across Canada prohibit discrimination due to pregnancy. This means an employer is not allowed to dismiss an employee for reasons wholly or partially related to the employee’s pregnancy. If or when an employee decides to notify their employer that they are pregnant, it is prudent to do so in writing. It should be kept in mind, however, that an employer can still dismiss a pregnant employee if the reason for dismissal is entirely unconnected to their pregnancy.
Often, pregnant employees will be entitled to unpaid job-protected leave under employment standards legislation. The eligibility requirements for this leave and the length of the leave varies between provinces and territories. Often, an employee will be required to be employed for a certain period of time prior to the leave in order to qualify.
If the employee will be taking a job-protected leave under employment standards legislation, the pregnant employee is ordinarily required to give their employer advance notice. That being said, most employers would prefer to know much sooner than is required by employment standards legislation so the employer can plan for the employee’s absence. For this reason, providing early notice is frequently better for an employee’s relationship with their employer.
Finally, after an employee finishes their leave, their employer is required to allow the employee to resume work in the position they held before the leave. If the employee’s position is no longer available, the employer will usually be required to place the employee in a comparable position.
Any employee who has been dismissed, or otherwise discriminated against, for reasons connected to their pregnancy should seek legal advice.
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Andrea Yu