Impact of Employment Standards Act changes on Pregnancy/Parental Leave

With the new year, some significant changes to Ontario’s Labour Relations Act (LRA) and Employment Standards Act (ESA) came into effect. The LRA governs the interactions of unions, their members, and employers. On the other hand, the ESA is a piece of minimum standards legislation, which governs the relations between an individual and an employer. It sets out the minimum contractual obligations on an employer in areas such as vacations, wages, etc.

Prior to the recent amendments, only certain parts of the ESA applied to public servants. Now, the ESA applies in its entirety. As the ESA is minimum standards legislation the terms and conditions of employment contained in AMAPCEO collective agreements exceed, for the most part, the ESA standard. Also, as it is minimum standard legislation, it is not possible to contract out of the ESA standards. Therefore, should any term in an AMAPCEO collective agreement fall short of an ESA requirement, the ESA requirement prevails. The same thing applies to any ESA requirements that are not specifically enunciated in an AMAPCEO collective agreements.

Some members have recently contacted the AMAPCEO office enquiring about the collective agreement impacts of lengthening the period of pregnancy and parental leave up to a maximum of 78 weeks. In terms of top-up amounts, the status quo prevails. The collective agreement stipulates that there is a top-up payment to employees on pregnancy or parental leave, covering the difference between Employment Insurance (EI) and 93% of the employee’s weekly rate of pay. This top-up is for 15 weeks of pregnancy leave and 15 weeks of parental leave.  The recent increase in the length of pregnancy/parental leave and any extension in the amount of EI paid have no impact on the amount of top-up the employer is required to pay.

Due to changes at the Federal level, certain aspects of the program must change—for instance, as the EI waiting period is shrinking from two weeks to one, the top-up provisions in our collective agreements will need to be altered. The Federal government has set out a transition period for collective agreements which runs until January 3, 2021, so this gives AMAPCEO and its employers time to negotiate the necessary changes to our collective agreements. We are reviewing this material internally at AMAPCEO and the content, timing and application of these amendments remains an item of discussion with our employer representatives.  More information will follow.