Interpretation Guidelines Manual
|ESA Section 51 - Parental leave|
Text of Legislation
This section explains who is entitled to parental leave, the length of the leave and how the employee must request the leave.
|Text of Legislation
New parents, both mothers and fathers, or adopting, are entitled to leaves of absence without pay to care for newborn or newly-adopted children. The right to parental leave under this Part is available to all eligible employees regardless of how long they have been employed.
An employee is entitled to apply for parental leave under this Part, providing the employee is either the:
In the case of multiple births, or children being placed with adoptive parents at the same time, only one leave under this Part is allowed. A surrogate mother and a foster parent are not entitled to parental leave under this Part. A surrogate mother is entitled to pregnancy leave under s.50 of the Act.
A request for parental leave is separate from a request for pregnancy leave. The two notices can be submitted together, but the birth mother should make it clear she is requesting the two leaves. Employees are encouraged to give as much notice as possible.
The duration of parental leave under this Part is as follows:
If pregnancy leave under s.50 of the Act is taken:
A child who is still in hospital or in a foster home is not considered to be placed with the parent, even though the parent may have custody. If a parent adopts a foster child, the entitlement to parental leave begins on the date the adoption becomes effective.
If a child, either natural or adopted, suffers some physical, psychological, or emotional conditions, both parents of the child may apply for up to 5 consecutive additional weeks of unpaid leave, to be taken immediately after the end of their parental leaves.
Although the Act says that a request for leave must be in writing, the courts and the Employment Standards Tribunal have clearly stated that failure to do so does not take away the employee's right to leave under this Part. The Act is benefits-conferring legislation. One of the purposes of the Act set out in s. 2(f) is "to contribute in assisting employees to meet work and family obligations."
These decisions have clearly stated that it would be unjust to deny such a fundamental and important benefit such as parental leave to an employee because of a failure to fulfill the technical and formal requirement to put the request in writing.
Employees are encouraged to provide notice in writing to their employers in the interests of furthering open communication between employers and employees and promoting fair treatment of all parties.
Employers may ask for a medical practitioner’s or nurse practitioner’s certificate confirming the employee’s entitlement to the leave. In the case of a request for additional leave, the employer may ask for a certificate confirming the need for it. This 5-week additional consecutive leave is only available as an extension of parental leave.
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.Subsection (4)
A birth mother has a basic entitlement to 17 weeks of pregnancy leave under s.50(1). Depending on whether or not a birth mother takes pregnancy leave, parental leave is either for 35 or 37 weeks. The 52 week maximum reflects the situation where a birth mother takes the maximum “normal” pregnancy leave of 17 weeks and the maximum parental leave of 35 weeks. This 52-week leave can be extended for special circumstances as follows:
Extending parental leave does not reduce entitlement to pregnancy leave and vice versa.
Employees may not change the duration of parental leave without the employer's agreement once leave has commenced. The director has no authority to require an employer to return an employee to the job before the leave expires. Any such change must be by agreement with the employer.
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
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.
Related sections of the Act or Regulation
Leaves and Jury Duty
Collective Agreements and the Employment Standards Act