Interpretation Guidelines Manual
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| ESA Section 50 - Pregnancy leave |
Contents: Summary Text of Legislation Policy Interpretation Related Information |
| Summary This section explains a pregnant employee’s entitlement to unpaid leave and the length of the leave permitted.
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Text of Legislation
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| Policy Interpretation This leave is granted to pregnant employees. Pregnancy leave is available to all pregnant employees, regardless of the length of their employment. The pregnancy leave of absence is without pay. If the birth is delayed beyond the expected date, this has no effect on the length of the pregnancy leave unless the period granted would exceed 17 weeks. In addition to the leave granted under s.50(1), an employee can apply for an additional six weeks leave under s.50(3), where appropriate. The employee may request, and the employer may grant a longer period of leave under this Part. A leave granted in excess of the required minimum does not relieve employers of their obligations under s.54 of the Act. Section 51 establishes additional statutory rights for extending the unpaid pregnancy leave for a birth mother, and also establishes unpaid leave in the case of a birth father and adoptive parents. Subsection (1) An employee is entitled up to at least 17 weeks leave of absence without pay, which may begin at any time up to 11 weeks prior to the expected date of delivery. The employee is entitled to six consecutive weeks after the actual date of birth, or a shorter period if requested by the employee. If no pregnancy leave is taken before the actual date of birth, the employee is entitled to take up to 17 consecutive weeks unpaid pregnancy leave. See ss.50(4) and (5) for further information on requesting a leave. Subsection (2) If an employee's pregnancy is terminated through miscarriage or abortion, s.50(2) applies. The employee is entitled to up to six consecutive weeks of leave without pay. Also see s.50(3). If an employee gives birth before a leave request has been submitted to her employer, and the child is stillborn or dies within days of birth, s.50(2) applies. Also see s.50(3). Subsection (3) In addition to the leaves granted under ss.(1) and (2), if an employee is unable to return to work for reasons related to the birth of the child, or termination of a pregnancy, further leaves of absence may be taken, but not exceeding a total of 6 additional consecutive weeks. See ss.50(4) and (5) for further information on requesting a leave. Subsections (4) & (5) An employee wishing to take pregnancy leave must submit a written request to her employer. The requirements for notice given before the birth of the child are set out in ss.50 (1) and 50 (3). Notice requirements after the actual birth are set out in s.50 (2). The period of leave is determined by the employee not the employer. If an employee meets the requirements set out in the Act, the employer must grant the leave on the dates requested. The request for leave should be in writing. A note dated and signed by the employee stating the nature of the request and the start and finish date of the leave is sufficient. This requirement protects both the employer's and employee's interests by preventing misunderstandings. The leave request must be submitted no later than 4 weeks before the day that the leave will begin. Failure to request a pregnancy leave in writing does not take away the employee's right to take leave under this Part. If an employer acknowledges receipt of verbal notice, written notice is not crucial. The Employment Standards Tribunal has held that an employee’s failure to make a written request to the employer for pregnancy leave did not take away their statutory right to claim entitlement to the pregnancy leave provisions. If required by the employer, the request must be accompanied by a certificate from a medical practitioner or licensed health care professional responsible for prenatal care. The proposed leave cannot begin earlier than 11 weeks before the expected date of birth. An employee can elect to begin her leave on any date from this date up to the actual date of birth. Changing pregnancy leave Once an employee has begun pregnancy leave, the Act only gives her the right to change the length of her leave under the following circumstances:
If the employee wants to return earlier, the employer and employee are encouraged to reach an agreement. This agreement should meet the employee's needs and also allow the employer to accommodate business needs and to treat the employee's temporary replacement fairly. Similarly, if an employee originally requested a shorter pregnancy leave and decides after the baby arrives that she would like to take up to the 17 weeks permitted by the Act, the parties are encouraged to reach a mutual agreement. Terms and conditions of employment protected Section 54 provides that an employer cannot terminate an employee or change a condition of employment without the employee's written consent as a result of a leave under this Part. See also s. 56 for an explanation of the effects of leave under this Part on employment and benefit payments. If the employer's business operations have been suspended or discontinued at the time the employee's leave ends, the employer must comply with s.54(2) when operations resume. In the event of a contravention under this Part of the Act, the director may order a remedy in a determination under s.79(2). The determination will include an escalating monetary penalty, subject to s.98. Employees covered by a collective agreement Under the provisions of s.3, parties to a collective agreement are prohibited from giving up the specific employment protection provided in Part 6. Employers, employees and unions may not negotiate terms and conditions that do not meet the standards set out in this Part of the Act, or Part 6 will be deemed to be incorporated into the collective agreement. Under s.3(7) of the Act, where there is a collective agreement, the enforcement of matters relating to Part 6 is through the grievance procedure, not through the enforcement provisions of the Act.
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| Related Information Employment Standards Tribunal Decisions Capable Enterprises Ltd. (C.O.B Christopher Robin School) BCEST #D33/98 Krazy Willy’s Buy & Sell Ltd., BCEST #D473/00 Related sections of the Act or Regulation
Other Court Decisions |
