Maternity vs. Parental Leave in B.C.: What’s the Difference?

We often hear the terms “maternity leave” and “parental leave” used interchangeably. While both are intended to support employees welcoming children into their families, they are distinct entitlements with key differences. Whether you are an employer or an employee in British Columbia, it’s important to understand how these leaves work.

The similarities

Let’s first review their similarities.

Both maternity and parental leaves are “job-protected leaves” under the Employment Standards Act (the “ESA”). This means an employee’s job is considered continuous and protected, and their employer cannot terminate them while they are on leave. In practice, this ensures that:

• employees continue to receive wage or benefit increases they would normally receive;
• employers must continue making payments to benefit plans (unless the employee opts out in writing); and
• annual vacation, termination entitlements, pension, benefits, or length of service continue to accrue as usual.

If any employer threatens or penalizes an employee for taking leave, or fails to protect their job in accordance with the ESA, the employees may have legal recourse.

The differences

Eligibility for leave

Maternity and parental leave share many of the same eligibility requirements, but there is one key distinction. Maternity leave is available only to employees who are pregnant or have given birth. Parental leave, on the other hand, is available to biological parents, adoptive parents, or same-sex parents welcoming a child into their family (even if they are not a biological parent to the child).

For both maternity and parental leave, employees must:

• be employed in British Columbia and covered the by ESA; and
• provide at least four weeks’ written notice before starting the leave.

Pregnant employees planning to take both maternity and parental leave should provide separate written notices for each.

Keep in mind: the ESA does not cover every worker in the province – some employment contracts and collective agreements may provide greater protections than the ESA. If you are unsure of your rights or obligations, seek legal advice to help clarify what applies in your situation.

Compensation during leave

Under the ESA, both maternity and parental leave are unpaid. However, employees can apply for paid “Maternity Benefits” and/or “Parental Benefits” through employment insurance (EI) via Service Canada. These benefits only replace a portion of an employee’s income during leave.

To qualify, employees must show:

• they have worked at least 600 insurable hours in the past 52 weeks (or since their last EI claim);
• they have experienced a reduction of more than 40% of their weekly earnings for at least one week; and
• they meet the specific criteria for either maternity or paternity benefits:
  • Maternity benefits: available to employees who are pregnant or have recently given birth.
  • Parental benefits: available to parents caring for a newborn or newly adopted child.

However, much like the leaves themselves, there are important differences between maternity benefits and parental benefits, too.

For example, maternity benefits cannot be shared between parents and provide up to 15 weeks of benefits, replacing 55% of earnings to a maximum of $695 per week.

Parental benefits, by contrast, can be shared between both parents (provided they are both eligible). Parents must choose between:

Some employment contracts or collective agreements may also require employers to “top up” EI benefits, providing employees with additional income during their leave.

Timing of leave

Maternity leave can begin up to 13 weeks before the expected birth date and must begin no later than the child’s date of birth. Parental leave must begin after the child’s birth (or for adoptive parents, after the child is placed with the parent), and within 78 weeks of that date.

Duration of leave

• Maternity leave: up to 17 consecutive weeks.
• Parental leave for birth parents who also take maternity leave: up to 61 consecutive weeks, beginning immediately after maternity leave (unless otherwise agreed).
• Parental leave for adoptive parents, same-sex parents, and biological parents who are not birth givers: up to 62 consecutive weeks.

Special circumstances

The ESA also provides extended leave in special circumstances.

For maternity leave:

• If a pregnancy is terminated, the employee may take up to six consecutive weeks of unpaid leave, starting on the date of the termination
• If a pregnant employee who has taken maternity leave is unable to return to work for reasons related to the birth of the child, or reasons related to the termination of the pregnancy, they may take an additional six consecutive weeks of unpaid leave. This can include physical complications, or emotional and psychological difficulties associated with childbirth or pregnancy loss.

For parental leave:

• If a child has a physical, emotional, or psychological condition that requires additional care, an employee may take an additional five consecutive weeks of unpaid leave immediately following their parental leave.

In some of these situations, employees may be eligible for EI while on leave.

If you have questions about maternity or parental leave in B.C., or want to ensure your policies and practices comply with the Employment Standards Act, contact our team – we’re here to help!