Maternity Leave Rights and Benefits in BC

You may already know that you are entitled to take time off work if you have a baby or adopt a child – but did you know that there are new temporary benefit laws that help working, mothers-to-be (and fathers) during the COVID-19 pandemic?

And did you know that you have certain rights and protections at work when you are expecting a child?

Let’s take a look at what your maternity leave rights are in BC and what your employer can and can’t do if you’re expecting a child.

EI maternity benefits: temporary COVID-19 changes to support mothers/parents

In BC, parental leave benefits include maternity leave for workers who give birth and parental leave for any parent with a newborn or newly adopted child.

These benefits are covered by the Employment Insurance (EI) program across Canada.

During the pandemic, temporary COVID-19 relief changes have been made to help support parents. The following applies until 25 September 2021:

• The waiting period may be waived
• You get a one-time credit of 480 hours, meaning that you only need 120 insured hours to qualify for the required 600 insured hours of work for benefits to apply
• Maternity and standard parental benefits are at least $500 per week before taxes (but you could receive more)
• Extended parental benefits are at least $300 per week before taxes (but you could receive more)
• If you received the CERB, the 52-week period to accumulate insured hours will be extended

What are your standard rights to maternity or parental leave in BC?

If you are pregnant or adopt a child while working in BC, you are entitled to take time off work if:

1. You’re covered by the Employment Standards Act in BC, or
2. You’re covered by an employment contract

The Employment Standards Act is the main legislation for employees in BC. The vast majority of employees are covered by it, with some notable exceptions including:

• Unionized employees
• Seasonal workers (e.g., fruit pickers, lumberjacks)
• Independent contractors
• Federally regulated employees
• Those working in some licensed professions

The Act sets out minimum standards for working conditions for all eligible employees in BC, including the terms of maternity and parental leave.

If you are not covered by the Act, you will need an employment contract that specifically addresses the terms of leave and what you are entitled to as a parent.

If you think you don’t have an employment contract, you’re wrong. Every worker in BC has a contract whether it is a formal written agreement, an email received before you started working, documents signed after you started work, receipt of a company policy/procedures manual, or a collective agreement negotiated by your union.

Standard maternity benefit overview

Standard maternity benefits (notwithstanding the temporary COVID-19 changes) are available from Service Canada for anyone who gives birth.

They can be claimed for a maximum of 15 weeks. The rate is 55 percent of your average insurable weekly earnings, up to a maximum of $595 per week.

Parental benefits are available to the parents of a newborn or newly adopted child. They can follow maternity benefits – you can apply for both at the same time but must choose between standard benefits and extended benefits and your choice cannot change your choice after benefit payments have started.

Standard parental benefit is available for up to 40 weeks (but one parent cannot receive more than 35 weeks of standard benefits) and is paid at a rate of 55 percent of average insurable weekly earnings up to a maximum of $595 per week.

Extended parental benefit is up to 69 weeks, but one parent cannot receive more than 61 weeks of extended benefits. This is paid at a rate of 33 percent of average insurable weekly earnings up to $357 per week.

If you are sharing parent benefits, each parent must choose the same option and submit an application. You will receive your benefits at the same time or one after another.

Maternity leave eligibility in BC

Your application for maternity or parental leave will be assessed by Service Canada after you submit it.

Generally, you will need to show the following:

• You’re either pregnant or have recently given birth (for maternal benefits)
• You’re a parent caring for your newborn or newly adopted child (for parental benefits)
• Your regular weekly earnings from work have decreased by more than 40 percent for at least one week
• You accumulated 600 insured hours of work (120 insured hours if applying before 25 September 2021) in the 52 weeks before the start of your claim or since the start of your last claim (whichever is shorter)

Can you still receive benefits if you’ve had a recent EI claim?

If you have received EI benefits in the past 52 weeks and are unsure whether you can claim maternity or parental benefits, it’s best to submit your application and let Service Canada decide.

You may not be able to receive the full schedule of maternity/parental benefits, but it depends on the circumstances.

Can my employer treat me differently because I am pregnant?

You are protected not only by employment law, but by human rights laws in BC if you are pregnant.

Your employer must not treat you any differently than other employees because you are expecting a child, or he or she may contravene discrimination laws. For instance, you cannot be passed over for a promotion based on your pregnancy.

These laws were created to protect employees against discrimination of any kind based not only upon pregnancy but on race, religion, gender, nationality, sexual preference, and other factors.

If you think you have been discriminated against, speak to one of our employment lawyers as soon as possible.

Can I be fired if I am pregnant in BC?

A BC employer cannot fire you because you are pregnant or because you take maternity or parental leave, or you may have a case for wrongful dismissal.

Neither can an employer unilaterally change a fundamental condition of your employment (if you are pregnant) without your written consent, or it may be deemed constructive dismissal.

What is “duty to accommodate”?

If you are pregnant, you will likely have some special needs at work, e.g., a more supportive chair, more regular bathroom breaks, no heavy lifting, or flexible work hours.

Providing for these requirements is known as a “duty to accommodate” by the employer. It is a necessary consideration of the employer but it should not cause undue hardship to the business.

Do you need help with maternity or parental benefits?

At Taylor Janis, an experienced employment lawyer can advise you during a confidential consultation about your rights regarding maternity/parental benefits and your employment rights when pregnant.

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