Case involving twins raises question: Should parental leave benefits be per pregnancy or per child?
By Jeffrey R. Smith
New parents in Canada have the benefits of an employment insurance (EI) system that allows one or both to take up to one year off work combined to care for a new baby in the early stages of its life — usually about 15 weeks for the mother and another 35 weeks that can be used by one or shared by both parents, during which they have a good portion of their salary covered by EI benefits.
This is quite generous compared to the United States, for example, which allows 12 weeks unpaid leave — with no such requirement for companies with less than 50 employees — though our southern neighbours are not the norm when it comes to parental leave.
EI rules stipulate parental leave applies to each pregnancy. But what if the pregnancy results in multiple births? This was the situation an Ottawa couple employed with the federal government found itself in a couple of years ago when the mother, Paula Critchley, gave birth to identical twins. Critchley applied for and received maternity leave and parental leave benefits for one of her babies. However, the father, Christian Martin, applied for 35 weeks of parental leave benefits for the other baby and was rejected.
An EI board supported their appeal and awarded Martin his benefits, but this decision was struck down recently by a Federal Court judge acting as an umpire on the employer’s appeal. The judge maintained the EI rules providing parental leave for each pregnancy should be adhered to and the government had “a degree of latitude” in allocating parental leave benefits. He also found caring for twins “did not prove historical disadvantage” that would lead to a finding of discrimination against parents of multiple births in the EI rules.
It can be a hassle for employers when employees take parental leave, but in this day and age most of us accept it’s in society’s best interests for a parent to be able to spend a child’s early years caring for them all day every day. And it can be in an employer’s best interests to hold on to a good employee who takes time off to care for a baby. But should a multiple birth warrant more leave, or is it asking too much of the EI system and employers?
More than one baby obviously requires more work for the parents. If the system is set up on the idea one baby requires a parent off work caring for it for a year, wouldn’t it be reasonable to assume another baby requires an additional parent or time off? Is denying additional leave discriminatory to parents of multiple births?
From an employer’s perspective, if an employee has multiple newborns at home and has to come in to work, is that employee going to be as productive? Probably not. It could even lead to a situation where an employee is forced to quit her job in order to care for the baby full time, or find another job that’s more flexible. Then the employer must go through the process of finding an effective replacement, which can have its own costs.
Christian Martin is apparently planning to appeal the decision to the Federal Court of Appeal, so the final chapter on this story may still not be written yet.
Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at [email protected]. For more information, visit www.employmentlawtoday.com.
