There is no Canadian equivalent to the Family and Medical Leave Act, although each jurisdiction contains statutory entitlements to unpaid leaves for pregnancy and parental leave.

For example, the Ontario Employment Standards Act, 2000 provides a pregnant employee with a 17 week unpaid leave of absence. The employee is entitled to the leave unless her due date falls less than 13 weeks after she commences employment.

A pregnancy leave cannot commence more than 17 weeks before the expected birth date, unless the birth date occurs before that date. While on pregnancy leave, the employee is entitled to continue to receive all employee benefits provided the employee continues to pay her portion of those benefit premiums.

While the employee is on a maternity leave her position is protected until she returns. If the position has been abolished in her absence, she is entitled to a comparable position upon her return. Much of the litigation in connection with pregnancy leaves arises when the employer, having found a replacement to be preferable, terminates the employee either before or immediately after her return. The principle is always that the employee should not be disadvantaged by having taken a maternity leave.

The Employment Insurance Act allows a pregnant employee to receive Employment Insurance benefits, following a two week waiting period, for a 15 week period. These benefits are equivalent to 55% of an employee’s salary, to a maximum of $485.00 per week. To compensate for this potential loss in wages, some employers choose to provide employees on pregnancy leave with supplemental benefits. These supplemental benefits are paid in addition to any Employment Insurance benefits to which an employee may be entitled.

Should an employee be unable to perform the duties of her employment by reason of the pregnancy there is an obligation on the employer to accommodate the employee short of undue hardship. This duty may require placing the employee in a different position.

The decision of the Supreme Court of Canada in Brooks v. Canada Safeway, [1989] 59 D.L.R. (4th) 321 stands for the proposition that an employer cannot prevent pregnant women, or women who have given birth, from accessing sickness and other employment benefits. To deny pregnant women access to sickness and employment benefits is discrimination based upon sex. Therefore employers who have such plans must allow women who meet the criteria for accessing the benefits to do so; an employer can not claim that pregnancy is not an illness or that it is voluntary for the purpose of excluding a potential claimant from the plan.