Returning to work after maternity leave in Canada: your rights

Which law governs your return

As with the leave itself, your return rights come from the Canada Labour Code if you work in a federally regulated industry, and from your provincial or territorial employment standards act otherwise. Most Canadians are in the second group. Because the thirteen provincial and territorial regimes differ in their notice periods and their wording, this page uses Ontario's Employment Standards Act as a worked example and flags where you must check your own jurisdiction.

Reinstatement: same job, or comparable

Ontario's rule is that in most cases an employee who takes a pregnancy or parental leave is entitled to the same job they had before the leave began, or a comparable job if the old job no longer exists.

Two protections sit inside that. First, you must be paid at least as much as you were earning before the leave. Second, if wages for the job went up while you were away, or would have gone up had you not been on leave, the employer must pay the higher wage when you return. A return at your old salary while colleagues received an increase is not compliant.

The exception is narrow: an employer does not have to reinstate you if it dismissed you for reasons totally unrelated to the leave. That is a high bar and the burden is on the employer.

The notice rules, and the trap inside them

In Ontario you are not required to tell your employer when you will return. If you say nothing, the employer must assume you are taking the full entitlement: 17 weeks of pregnancy leave, and the full 61 or 63 weeks of parental leave.

That default creates the trap. If you did not specify in your original notice that you planned to take, say, 35 or 37 weeks, the employer assumes the full 61 or 63 weeks, and you must give four weeks' written notice before returning earlier. Ontario's guidance advises telling the employer exactly how many weeks you intend to take when you first give notice, precisely to avoid this.

Four weeks' written notice is also required to move your return date later, and it must be given before the date you were originally going to return. You cannot extend beyond your total entitlement without the employer's agreement.

If you decide not to return at all, you must give at least four weeks' written notice of resignation, unless the employer has constructively dismissed you.

An employer cannot pull you back early

Ontario is explicit that an employer cannot require an employee to return from leave early, and has no right under the ESA to demand medical documentation proving you are fit to return. The decision to return is yours.

Part-time return ends the leave

This is the single most consequential difference between employment standards law and Employment Insurance, and Ontario spells it out twice. Once you start a pregnancy or parental leave you must take it all at once. You cannot use part of it, return to work, and go back on leave for the unused portion. Under the ESA a return to work, even on a part-time basis, ends the leave.

Under the federal Employment Insurance programme, by contrast, you can return to work and earn a certain amount without your benefits being reduced. So the same day's work can be fine for EI and fatal for your job-protected leave. If you are considering easing back in a few days a week, get written agreement from your employer first, because the statutory protection may not survive it.

What you keep while you are away

Ontario protects continued participation in pension plans, life insurance, accidental death plans, extended health plans and dental plans. The employer must keep paying its share of the premiums unless you tell them in writing that you are stopping your own contributions.

You continue to earn credit toward length of employment, length of service and seniority throughout the leave. Ontario's worked examples show a year of leave counting toward a five-year service milestone, and a unionised employee accruing seniority for layoff, recall, promotion and vacation purposes exactly as if actively employed.

A probationary period does not run while you are on leave. If you were on probation when the leave began, you complete it after you return.

Reprisal is prohibited

An employer cannot penalise you for taking, planning to take, being eligible for, or even asking questions about pregnancy or parental leave. Ontario's list of prohibited reprisals includes penalising an employee whose spouse has just given birth and who has not yet decided whether to take leave.

Nursing, hours and flexibility

Rules on breaks for nursing or expressing milk, and on requesting changed hours, are set separately at the federal and provincial level and are not uniform across the country. Rather than generalise, ask your employment standards branch directly and check your collective agreement if you have one, since negotiated terms are frequently better than the statutory floor.

What to do, and in what order

Look up your own province's employment standards branch and confirm its notice periods rather than relying on Ontario's. State the number of weeks you intend to take in your original notice. Diarise the four-week point before your planned return. Confirm in writing that your job, pay and benefits are unchanged. And do not accept a part-time return without written agreement, because it can end your protected leave.