BC Business
As more men take time off work to care for their kids, returning to an old position is legally protected but not guaranteed.
You’re a high-flying male executive. Six months ago, you and your partner found out you were pregnant. Congratulations! Of course, you’ve put in for parental leave—but your boss is not impressed and says that you’ll be expected back in eight weeks, tops. What are your options? What are hers?
Let me take you back to the early 1990s. “Smells Like Teen Spirit,” Nirvana’s incomprehensible ode to angst or body odour (we’re not sure which), was skanking its way up the charts. Bill Clinton had yet to realize that cigars could be hazardous to his health. Box cutters were still meant for cutting boxes. And on a whim, one guesses, some dude asked to take time off from work because his wife was about to give birth. [Insert riotous boardroom laughter here.]
To steal an old lick from Virginia Slims, which is a cigarette manufacturer and not, as you might reasonably believe, a fitness coach, “You’ve come a long way, baby.” For the most part, at least. But here’s a sobering thought: in Quebec, the share of mothers and fathers who availed themselves of parental leave was roughly equal (96 percent versus 93 percent, respectively). In the rest of Canada, however, only 24 percent of fathers took leave, compared to 85 percent of mothers. (From a Statistics Canada study, published in 2017.)
The good news? Anecdotally, attitudes seem to be changing. Less reluctance to take parental leave on the part of fathers (combined with Employment Insurance support) has led to an increase in men taking the time they’re allowed. If the odds get bucked, though, and the above fictional scenario does take place, the good news is that the dad has recourse.
“Practically speaking, the employer can’t ask the father to come back after eight weeks,” says Elizabeth Reid, an employment and human rights lawyer and a partner at the Vancouver office of Fasken. “They’re entitled to full leave under the Employment Standards Act.”
In Canada, parental leave for women and men is a right, enshrined in the aforementioned Employment Standards Act. And changes to Employment Insurance in 2019 secured, for the first time, parental leave for those who identify as fathers (and who are eligible for EI benefits).
The granting of leave is not automatic, Reid notes. “They have to request [it] four weeks in advance—they have to give the employer some notice.” But really, for employers, the price to get on board is relatively low: while they must provide up to 62 weeks of parental leave, it’s unpaid leave that’s on offer.
Still, the employer must temporarily replace the new father and make allowances for his return—and on the latter score, there’s not a lot of wiggle room, either. “There is an obligation on the employer not to change the terms and conditions of work because of any leave that was taken,” Reid says. “They have to bring the person back to either their old position or a comparable position.”
These protections aren’t limitless, or even universal; some employees (doctors, lawyers and other professionals) fall outside the scope of the Act. And if the company goes through a major reorganization—say the employee’s position simply no longer exists, and its disappearance had nothing to do with the parental leave—the father may be out of luck.
“It’s not an absolute job-protected leave, in that sense,” Reid explains. “The principle of it is that no one who takes parental leave should be impacted in a negative way because of that leave.” Also, if the business fails, all bets are off.
Thankfully, Reid observes, most employers now recognize that parental leave is worthwhile. “I think the attitudes are changing a lot, and people are seeing the value of fathers and all parents being involved in their children’s lives.” While today there is certainly the possibility that taking leave could be a career killer, Reid says none of her clients have ever taken that position. “And,” she adds, perhaps a bit dryly, “they can tell me anything.”
Fictional scenario. Not intended as legal advice.