Can I be laid off or terminated during maternity leave?

No one includes getting laid off as part of their maternity leave plans - but it does happen. We've brought in labour and employment lawyer Deborah Hudson to give us the facts on when this is and isn't legal.

Can I be laid off or terminated during my leave?

An employer cannot lay off or terminate an employee during their maternity/parental leave because that employee has taken maternity or parental leave. However, an employer is legally allowed to lay off or terminate an employee during their maternity/parental leave, in the event that the reason for this lay off is entirely unrelated to the leave. Under the Employment Standards Act, 2000, employers are required to hold an employee’s job for the duration of their protected leave, and if that job does not exist on their return, the employer is required to offer the employee a ‘comparable job’. Under the Human Rights Code, an employer cannot discriminate against an employee for taking a leave for pregnancy or giving birth.

Below are a few examples to help reflect what may be an illegal layoff versus what is a legal layoff.

EXAMPLE 1- LEGAL TERMINATION

A company closes its entire operations while an employee is taking their pregnancy/parental leave. The company gives the employee notice of termination and closure at the same time as all other employees. This employment termination is legal because the reason of termination has nothing to do with the fact that the employee has taken a pregnancy/parental leave. However, the employer is still required to provide the employee with termination notice (i.e. a package) based on their employment circumstances. Ideally, to the extent possible, it is better for the employee to receive their termination package after their Employment Insurance period is over for their maternity leave because receiving a termination package can impact receipt of Employment Insurance.

EXAMPLE 2 – ILLEGAL TERMINATION

After an employee commences their maternity leave, the Company hires a temporary replacement to cover the employee’s leave. The employer likes this replacement and wants to offer them full-time employment. As such, the employer terminates the employee while they are on pregnancy or parental leave in order that they can present a full-time offer to the employee who was hired to cover their leave. This conduct would be illegal and in breach of the Human Rights Code.

EXAMPLE 3 – LEGAL TERMINATION

An employer closes an entire department while the employee is on pregnancy or parental leave. The employer terminates all employees in that department at that time, including the employee who is currently on leave. This termination is not illegal because all employees in the department were terminated. The employer is still required to provide the employee with termination notice (i.e. a package) based on their employment circumstances. Ideally, to the extent possible it is better for the employee to receive their termination package after their Employment Insurance period is over for their maternity leave because receiving a termination package can impact receipt of Employment Insurance.  

In summary

An employer cannot terminate or lay off an employee due to the fact that the employee took a job-protected leave. However, employees who are on a job protected leave are not completely immune from termination. An employer is allowed to terminate or lay off employees for reasons that are entirely unrelated to the leave itself (like a closure of a company or a department). Many cases contained nuanced facts around termination during job-protected leaves, as such, it is advisable for employees in this circumstance to seek legal advice to evaluate their particular situation.

Prepared for My Parental Leave by Deborah Hudson, Labour + Employment Lawyer and Partner, Hudson Sinclair LLP. This is not legal advice.

Hudson Sinclair is a labour and employment law firm dedicated to providing best in class client service and achieving exceptional results.

As advocates they represent their clients in litigation before the Courts and administrative tribunals. They value the importance of early and productive resolution discussions when beneficial and appropriate.

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Deborah Hudson

Deborah Hudson is an experienced labour and employment lawyer based in Toronto, Canada who provides solutions-focused, timely, and highly specialized legal advice. She advises clients about matters occurring at all stages of the employment relationship, including: Reviewing/drafting employment contracts and termination packages, Drafting/ interpreting employment-related policies and procedures, Advising on accommodation and human rights matters, including maternity leave and parental leave rights. Moms at Work members receive a discounted, flat-rate fee for a 45-minute initial consultation.

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