The Employment Insurance Act (EIA) was recently amended to allow birth mothers to take their employment insurance (EI) benefits over an 18-month period. However, to date, the B.C. Employment Standards Act (ESA) has not been amended. This means that most B.C. employers (those who are provincially regulated) are still required to provide for only 12 months of unpaid combined maternity and parental leave for birth mothers and 37 weeks of parental leave for biological fathers and adoptive parents.
Absent changes to the ESA, employers are under no obligation to grant employees an additional six months of leave to match their entitlements to EI benefits.
That said, it is widely anticipated that the ESA will be amended, perhaps as early as this spring, to accord with the new EIA amendments. Once the amendments have been made, employees will be entitled to have their positions protected for up to 18 months should they opt to take an extended leave.
What has changed?
On December 3, 2017, amendments to the federal EIA relating to maternity and parental leave came into force. The payment of parental benefits is now allowed over a longer period at a lower benefit rate. Parental EI benefits have been extended an additional 26 weeks from the previous 35 to a total of 61 weeks. A birth mother may now combine these extended parental EI benefits with her 15 weeks of maternity EI benefits for a total benefit period of 18 months. Employees can choose to receive EI benefits while on parental leave:
•at the existing benefit rate of 55% of average weekly earnings over a period of up to 12 months, capped at $547 per week; or
•at the lower benefit rate of 33% of average weekly earnings over a period of up to 18 months, capped at $328 per week.
In either choice, the total amount of EI benefits received remains the same.
The employee’s choice is one-time and irrevocable. Where benefits are shared, the first parent’s decision determines the EI parental benefit rate and duration for the other parent.
The extended benefit period is not available to any employees currently on leave relating to children born or adopted prior to December 3, 2017. The old rules continue to apply to those employees.
The Canada Labour Code was also amended to ensure that workers in federally regulated sectors have their job-protected leave provisions extended to match the parental EI benefits. As mentioned above, the applicable B.C. law is also widely expected to change soon.
What will a change to the ESA mean for employers?
B.C. employers might face increased logistical challenges in providing 18-month leaves for employees, particularly when facing the loss of key staff for the extended period of time. Clear communication about an employee’s intentions in terms of leave, and advanced planning to ensure that business needs are met, will be necessary to minimize disruption.
In addition, many employers provide top-up payments to employees for some or all of a maternity leave period. When the ESA changes, so too might an employer’s obligation to pay top-up. Reviewing the language used in the policies, contracts and collective agreements that provide for employees’ top-up entitlement is critically important so that steps can be taken to protect against unexpected cost increases as a result of this legislative change.
For example, a collective agreement or contract that provides for “top-up to 95% of salary during any period where an employee is in receipt of EI benefits” would likely result in an obligation on the employer to pay a full 18 months of top-up at an increased rate that makes up for the lower EI benefit payments the employee would be receiving.
Even language that provides for top-up entitlement during a specified period (e.g., for a total of 12 weeks) could increase costs as employers are required to make up the difference between the $328 per week the employee would be paid in EI benefits during the extended leave and the $547 per week she would have been entitled to over the course of a 12-month leave.
Negotiating language with the union to limit top-up entitlement under a collective agreement will often be the only option available to unionized employers, a prospect that might prove challenging.
Non-unionized employers might have other options available in terms of amending their contracts and policies in a timely way, but this must be done with care to avoid breach of contract and constructive dismissal claims.
Employers would be well served to get legal advice about the possible implications of the expected ESA changes in their workplaces before the changes are implemented. This will help ensure that financial and logistical implications are minimized and that these family-friendly legislative changes do not result in unexpected costs or challenges in the workplace. •
Jennifer Russell is an employment, labour and human rights lawyer and a partner at Roper Greyell LLP. This article is for general information purposes only and does not constitute legal advice.
