The question
I am currently in the middle of a 12-month parental leave, but feel pressure to return in order to keep my job. Everyone is struggling and people are worried the company won’t meet its annual targets and will have to do layoffs. I’m concerned I’ll be the first person let go because I’m already on leave. What are my rights if I’m laid off while on parental leave? Will I still be entitled to EI? What happens if I return to work early, then get laid off anyway a few months later?
The first answer
Christie Gilmour, employment lawyer, Forte Workplace Law, Surrey, B.C.
Treating you negatively (such as laying you off first) because you are on parental leave is discrimination under human-rights legislation. In British Columbia, the Human Rights Code says an employer must not discriminate against an employee because of the employees’ family status or sex. Sex includes pregnancy and related leaves.
If you are laid off first because you are on parental leave, it is also likely a contravention of local employment/labour legislation. In B.C., the Employment Standards Act says that an employer must not terminate employment because an employee took parental leave. But parental leave does not insulate you from company-wide layoffs.
Whether there is discrimination under the Human Rights Code or a contravention of the Employment Standards Act is unique to each case. The bottom line is if you are worse off than other employees because you took parental leave, you likely have claims for discrimination under human-rights legislation and for contravention of applicable employment/labour legislation. You could also have a civil claim for damages for wrongful dismissal (severance).
If you are laid off while on parental leave, your parental EI benefits should not be affected. But when your parental EI benefits end, you may not be eligible for further EI benefits as you may not meet the qualifying and entitlement conditions. If you are laid off shortly after you return to work, you may also not meet the conditions for further EI benefits. It will depend on how long you have been back at work.
The second answer
Susanna Allevato Quail, partner, Allevato Quail & Roy, Vancouver
If your company decides to eliminate your position and lay you off, you will be entitled to notice or pay in lieu of notice at the point your leave ends. Your notice period will not begin to run until you return from parental leave.
If the employer gives you working notice, then you will return and work for the duration of your notice period. If they choose to provide severance pay instead of working notice, they should provide that when your parental leave is up in order to avoid complications with EI. If they pay severance while you are on EI, EI may treat that as earnings and your EI may be reduced in response. You can fight this with EI, but it is generally easier just to avoid opening that can of worms with EI at all.
If you return to work early and then are laid off a few months later, you will have all the same employment rights as you would have had you not gone on leave.
Note that employers are prohibited from terminating employment because of a protected leave, such as a parental leave. Faced with the necessity of layoffs, your employer cannot select you for layoff because of your parental leave. That said, it can be difficult to prove your position was selected for elimination because of your leave and not because of genuine operational reasons if the company is laying off multiple employees.
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Andrea Yu