Can HR terminate an employee on parental leave?

When it comes to parental leave, there’s a lot of misinformation out there. Questions around what employers can and cannot require from an employee on leave, what questions they ask and demands they can make, is an oft misunderstood set of policies. In that vein, HRD spoke with HR legal consultant Rebecca Kalison, who shed light on some pressing concerns – first and foremost of which is whether HR can fire an employee whilst they’re on parental leave.

“No,” she told HRD. “Your general obligation is to return the employee to their same position. Of course, this may not always be possible. If your organization undergoes changes such as restructuring, downsizing, or even closing the business, then it may not be possible to reinstate that employee following their leave. However, the consensus is that in the absence of significant restructuring, you are obligated to return that employee to a comparable position.”

The perks of parental leave

Paternal leave in Ontario differs from male to female rights. To qualify for maternity leave, the employee must be a full-time, part-time, permanent or term contract employee – what’s more, they must be employed by someone covered by the ESA. For parental leave, that must begin no later than 78 weeks after the date the child and applies to adoptive parents and an employee in a relationship with the parent of the new child.

Hiring a replacement

While an employee is on maternity or parental leave, they’re entitled to job protection. That means, as Kalison told us, that while you can hire a replacement you cannot replace them when they return to the office.

“You may hire a replacement worker to cover the job while the employee is on leave, but the employee is entitled to return to that position or a comparable job when the leave is finished,” she added. “Although employers do not have to pay wages over Pregnancy Leave, employers in Ontario must pay for and maintain an employee’s benefits during their Pregnancy Leave. This includes pension plans, life insurance plans and dental plans.”

Responding to parental leave requests

When an employee approaches you to request parental or maternity leave, there’s several steps you should take to ensure both you and they are prepared. Kalison recommended the following steps;

1. Sit down with the employee and look at the dates that they want to take as leave. Make sure the employee understands his or her rights to take leave and that you both understand the dates involved.
2. Have the employee submit a request in writing that specifies those dates.
3. Direct the employee to visit the Service Canada website or a Service Canada centre to better understand them eligibility for Employment Insurance benefits.
4. Assure the employee that you will provide a Record of Employment (ROE) as part of their application for EI benefits.