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Questions about Pregnancy Leave

What exactly does this provision do?

Employees who have taken pregnancy leave, but are not entitled to take parental leave, must now end their pregnancy leave either 17 weeks after it began, or 12 weeks after the birth, still-birth or miscarriage, whichever is later. If an employer requests a medical certificate for any of the reasons in  section 46 relating to pregnancy leave, the certificate may be provided by a medical doctor, midwife or nurse practitioner.

Why is this significant?

The new provisions in the Fair Workplaces, Better Jobs Act extend the period of pregnancy leave that can be taken by an employee who has had a still-birth or miscarriage, or has acted as a surrogate. Employees in the care of a midwife or nurse practitioner will no longer be required to seek out a medical doctor to issue a medical certificate if one is requested by the employer.

How is the new provision different from the existing provisions in the Employment Standards Act, 2000?

Previously, an employee who was not eligible to take parental leave was required to end her pregnancy leave on the later of 17 weeks after the leave began, or six weeks after the birth, still-birth or miscarriage. Medical certificates could only be issued by a “legally qualified medical practitioner,” which was previously interpreted to mean a medical doctor only.

What is a nurse practitioner?

A nurse practitioner is a registered nurse who is a holder of an “extended certificate” under the Nursing Act, 1991. A nurse practitioner does not include a “registered nurse” who is a holder of a general certificate, or a “practical nurse.”

What is a midwife?

A midwife for the purposes of pregnancy leave is a holder of a general certificate of registration with the College of Midwives of Ontario. A holder of a “supervised” or “inactive” certificate would not be considered a midwife for the purposes of the act.

What happens if the employee is not in Ontario when the certificate is issued? Will it be valid?

As long as the medical practitioner who issued the certificate holds an equivalent qualification from another jurisdiction, it is valid.

When must the leave end?

Either 17 weeks after it began, or 12 weeks after the birth, still-birth or miscarriage, whichever is later.

Does an employee who is not entitled to parental leave have to remain on leave for 12 weeks after a birth, still-birth or miscarriage?

No. As previously, an employee can take any amount of pregnancy leave up to the specified limits.

Has anything else about pregnancy leave changed?

No. All the notice to the employer and eligibility requirements for the leave, for example, remain the same.

What happens to employees who are already on pregnancy leave?

Employees are only entitled to the new, potentially longer period of leave if they started their pregnancy leave after January 1, 2018. If an employee was on pregnancy leave before that date, then the leave must end either 17 weeks after it began, or six weeks after the birth, still-birth or miscarriage, whichever is later.

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