Authors: Kristin Gibson, Danielle Dubois, Carolyn Frost
The Federal Government passed Bill C-44 in June of 2017, which amended the Employment Insurance Act (the “Act”) and the Canada Labour Code, among other legislation. Amendments were made in four key areas: maternity leave benefits, parental leave benefits, leave to care critically ill children and leave to care for critically ill adults.
These new changes came into effect on December 3, 2017. Among other things, the amendments:
- allow parental benefits to be paid over a longer period at a lower benefit rate
- allow maternity benefits to be paid as early as the 12th week before the expected week of birth
- create a benefit for family members to care for a critically ill adult and
- allow benefits to care for a critically ill child to be payable to family members.
Changes to Maternity Benefits
Previously, maternity leave benefits had been payable for the period starting eight weeks prior to the claimant’s due date, and up to 17 weeks after the birth of her child, for a maximum of 15 weeks (with a one-week waiting period).
As of December 3, 2017, the EI maternity benefits will be payable to the birth mother up to 12 weeks before her due date. There are no changes to the one-week waiting period or the benefits payable period of 15 weeks.
Changes to Parental Benefits
Parental benefits have also changed. Before the amendments, parents could obtain benefits for up to 35 weeks, starting at the birth or adoption the child. These benefits had to be paid within 12 months of the date the child came into the parent’s care. A birth mother was eligible for a combined total of 50 weeks of EI parental and maternity benefits.
As of December 3, 2017, parents can now choose to receive EI parental benefits at a rate of 33% of weekly insurable earnings, for an additional 26 weeks, to a maximum of 61 weeks. Alternatively, parents can elect to receive benefits of 55% of earnings for a maximum of 35 weeks.
Other Leaves
With regard to critically ill children, the Act has expanded the potential recipients from just parents to allow additional prescribed family members to receive this benefit.
Bill C-44 also introduced a new adult caregiving benefit of up to 15 weeks in a 52-week period.
Some Considerations for Employers
Notwithstanding the new ability to access pay for additional time off as set out above, the ability to access leave from employment is governed for most employers, except those in federally regulated industries, by provincial law.
Looking out west, none of Manitoba, Saskatchewan, Alberta or British Columbia have amended their applicable employment standards legislation to impose any new obligations on employers to provide longer periods of leave – with the exception of one minor amendment in Alberta extending maternity leave from 15 to 16 weeks.
Even so, couples can work their individual leave entitlements to each take a permissible leave in succession. This would allow them to obtain the full benefit of the extended parental leave benefits.
Typically this would not have an impact on employers. Where a couple works for the same employer, it is conceivable that the two parents could combine leave entitlements in order to obtain a combined leave in excess of 12 months. For example, in Manitoba there is no limitation on parental leave that would prevent each parent from taking the full 37 weeks of leave successively just because they work for the same employer. While there is nothing new about that possibility, the likelihood of employees taking successive leaves under the old benefits scheme was more limited because of the practical reality for parents that it would have resulted in a period of time where they would be without income from either employment or from EI. With these changes, employers could see an uptick in couples actually requesting successive leaves because of their new ability to get paid.
Some companies may have policies or collective agreements in place to “top up” maternity and parental leave payments for part or all of the period of time covered by EI. If an employee opts to take the longer leave, the weekly payment amount he or she is eligible to receive from EI drops, meaning that the employer may have to increase its top up amount accordingly. This is another potential implication that employers may need to consider.
Our Labour and Employment team members across Western Canada can provide additional insight and advice on how your company may be affected by these changes.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.