THE QUESTION
I am pregnant and I took a two-month leave of absence without pay because I couldn’t stand for long periods of time. Now I need to apply for maternity leave as I am due in 11 weeks. Will the two-month gap between my last day of work and applying for maternity leave cause a problem? Do I still qualify for maternity leave benefits?
THE FIRST ANSWER
Lai-King Hum, founder and senior lawyer, Hum Law, Toronto
Assuming you otherwise meet the thresholds to be eligible for pregnancy leave and for maternity benefits, the two-month gap should not be a problem.
Regarding pregnancy leave, employment standards legislation across Canada provides pregnant employees unpaid time off work to prepare for the delivery of a child and their respective recovery. Most jurisdictions require an employee to complete a minimum period of prior employment to qualify. An employee’s prior employment requisites varies by jurisdiction between 90 days and 20 weeks. For example, Ontario’s employment legislation provides that an employee needs to have been employed for at least 13 weeks, whether actively working or not, before being eligible. Assuming you are an Ontario worker and worked around five weeks before going on leave, your two-month (about 8.5 weeks) leave would count toward the 13-week eligibility period. So, in Ontario, you would qualify. Similar eligibility thresholds apply in other Canadian jurisdictions.
To qualify for maternity benefits under the federal Employment Insurance Act, first, you must be on leave from work because you are pregnant or have recently given birth. Second, you need to have worked 420 insurable hours in the 52 weeks preceding the time in which you made a claim for maternity benefits. Include every hour of work within the 52 weeks to determine insurable hours. As you accumulated no insurable work hours during your two-month leave, it would not count toward the 420 insurable hours required.
Accordingly, if you meet the criteria mentioned above, you qualify for maternity benefits. You can apply for these benefits through the Service Canada website, as early as 12 weeks before the expected date of birth.
THE SECOND ANSWER
Sarah Coderre, partner, Bow River Law LLP, Calgary
Congratulations on your baby-to-be! According to Service Canada’s current rules, your unpaid medical leave will not have an impact on your EI application and should not create any issues for your maternity/parental leave claim if you meet the eligibility criteria for benefits. To be eligible for maternity leave and parental leave EI benefits, a parent is required to have worked 420 insurable hours in the 52 weeks prior to their leave. The 420 insurable hours of work over the past 52 weeks that you will need to work to qualify does not need to be consecutive, or even with the same employer, and while it sounds like a lot of time it is only 12 weeks of work at 35 hours/week. Your two months of unpaid leave does not count toward your insurable hours because the insurable hours must be time that you have worked and received wages for.
Your maternity leave/parental leave benefits amount will be calculated based on a percentage of the income you received prior to your leave (55 per cent of average insurable weekly earnings up to a maximum amount). If your income fluctuated in the 52 weeks before your leave (in your case, going from having income to no income), Service Canada will use your highest-earning weeks in the prior 52 weeks to determine your income and benefits during your maternity/parental leave.
Ensure that, before you apply for benefits, a Record of Employment for any job you held over the past year has been submitted to Service Canada so that they can easily confirm your insurable earnings and quickly approve your claim. If you have any further questions, contact Service Canada directly.
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