Pregnancy leave in Ontario: how it works for employers

When an employee is pregnant and expecting, employers have a legal obligation to provide them with Pregnancy Leave (informally referred to as maternity leave or mat leave) under Ontario’s Employment Standards Act (ESA). Failure to comply can result in orders to comply, monetary penalties, or legal claims—and can cause serious hardship for affected employees. 

This guide explains what pregnancy leave is, Ontario employer obligations for pregnancy leave, and important details to help employers make informed decisions. 

What is pregnancy leave?

• Available to employees who are pregnant 

• It is a statutory right under the ESA 

• Employees must be reinstated to the same or similar job 

• Not the same as Parental leave 

Pregnancy leave is a job-protected leave available to employees who are pregnant, allowing time off before and after the birth of their child. It is a statutory right in Ontario, and employers are legally required to grant it if the employee meets the eligibility requirements. 

Because this is a job-protected leave, employees must be reinstated to their previous position, or to a comparable one, when they return. They cannot face reprisal for taking the leave, nor can they be returned to a role with reduced pay, responsibilities, or benefits. Employees should return to the same position as a priority and should only be given an alternative role if there are reasonable circumstances; such as role elimination. 

Pregnancy leave should not be confused with Parental leave, which has different entitlements and requirements. 

Pregnancy leave or maternity leave – which is it?

• Refer to it as “Pregnancy Leave”, not “Maternity Leave” or “Mat Leave” 

• Correct verbiage ensures ESA and OHRC compliance 

• Inclusive language supports the diversity of your employees 

It is important to refer to this leave as “Pregnancy Leave” rather than “Maternity Leave” or “Mat Leave” in business policies, contracts and discussions with employees. “Pregnancy Leave” is the term used in Ontario’s Employment Standards Act and is gender-neutral, making it inclusive of transgender, non-binary, and other gender-diverse employees. 

Using the correct term also supports compliance with Section 5(1) of Ontario’s Human Rights Code, which prohibits employment discrimination based on gender identity and gender expression. 

Additionally, in the interest of best practice, all internal documentation such as contracts and policies, should use gender-neutral language when referring to pregnant employees. Generalized terms like “expecting mothers” or “pregnant women” can be exclusionary and should be avoided if possible. 

How employees qualify for pregnancy leave

• Employed by a business covered by the ESA 

• Employees can be full-time, part-time, or permanent/term contract 

• Employment began 13 weeks prior to due date 

Pregnant employees whose employers are covered by the ESA qualify for pregnancy leave in Ontario whether their employment is: 

• Full-time 

• Part-time 

• Permanent or term contract 

And their employment began at least 13 weeks before the due date of their baby.  

This does not mean that the employee has to have actively worked for 13 weeks, only that their employment commenced 13 weeks prior to the date that the baby is expected to be born. 

For example, if a baby is born prematurely and the employee had been employed for 11 weeks, but the expected due date fell after 13 weeks of employment, the employee would still be entitled to pregnancy leave. 

How long pregnancy leave lasts in Ontario

• Pregnancy leave lasts up to 17 weeks 

• The leave must be taken all at once, it can’t be split up 

• Employers cannot cut pregnancy leave short, employees can 

Pregnant employees in Ontario are entitled to up to 17 weeks of pregnancy leave.  

The employee can choose to end their pregnancy leave early and return to work, but it must be taken all at once. For example, if an employee ends their pregnancy leave after 12 weeks, they cannot take an additional 5 weeks at a later date. 

Who can decide how long pregnancy leave lasts?

Employers cannot decide whether an employee ends their pregnancy leave early, that decision lies solely with the employee. 

An employee can tell their employer when their return to work date will be, but they are not required to return on that date—if they have additional leave left. If the employee does not specify a specific date for their return to work, the employer should assume that the employee will take the full 17 weeks of the leave, or any longer period that the employee might be entitled to. 

When pregnancy leave can begin

• Earliest: up to 17 weeks before the due date 

• Latest: upon the birth date, or due date, whichever is earlier 

Depending on individual circumstances, the date pregnancy leave will begin can vary. As every pregnancy is different, employers are expected to accommodate this under Ontario’s Human Rights Code and ESA. 

The earliest pregnancy leave can begin

As per Ontario’s ESA, the earliest an employee can usually begin their pregnancy leave is 17 weeks before the due date. However, if the employee has a premature live birth 17 weeks before the due date, their leave may begin from that day onward. 

The latest pregnancy leave can begin

At the latest, pregnant employees must begin their pregnancy leave either on their due date, or when the baby is born; whichever is earliest of the two. 

For example, if an employee’s due date was June 1st, and they didn’t wish to begin their pregnancy leave before their due date, but they gave birth on May 20th, their pregnancy leave would begin at the earlier date. 

Notice requirements for pregnancy leave in Ontario

• Ideally 2 weeks of notice from the employee 

• Employees can alternatively provide retroactive notice 

• Employers should allow employees to advise of leave types 

• Employees that fail to give required notice do not lose the right to leave 

Under Ontario’s ESA, employees are expected to provide their employer with at least two weeks’ written notice before starting pregnancy leave. However, this is best viewed as a guideline for ideal circumstances, not a strict requirement. Here’s how it works: 

• Employees should give two weeks’ written notice before starting their pregnancy leave. 

• If the employee has to stop working earlier than expected, for example, due to pregnancy-related complications, they have two weeks from the date they stop working to provide written notice of when their pregnancy leave began or will begin. This is known as retroactive notice. 

• If time off is initially taken due to complications, the employee may choose to treat that time as sick leave, and begin their pregnancy leave at a later date. 

In practice, employers should inform employees of these rights and give them space to decide how they wish to classify their leave. Always wait for the employee’s direction before assigning a leave type, as any other action from the employer could result in a reasonable human rights complaint. 

It is important to note that employees that fail to give their required written notice, do not lose the right to pregnancy leave. 

Employees changing their notice

If an employee has previously provided notice—but wishes to amend the start date of their pregnancy leave, they are permitted to do so under the ESA. 

Starting the leave earlier

The employee can begin the leave earlier than their original date, provided that new, written notice is provided to the employer at least two weeks before the new start date. 

Starting the leave later

Employees can make the start date later, provided they give notice two weeks prior to the previous leave start date—and no later than their due date. 

Paid pregnancy leave in Ontario

As pregnancy leave is unpaid under the Ontario ESA, employers do not have to provide paid pregnancy leave—however, if it is provided under the employee’s employment contract, the employer must fulfill their commitment. 

Employees will be entitled to Maternity and Parental benefits through Employment Insurance via Service Canada. 

How pregnancy complications affect pregnancy leave

Employees that have miscarriages or stillbirths more than 17 weeks before their due date are not eligible to pregnancy leave. 

However, employees that have miscarriages or stillbirths within the 17 week period prior to their due date are still eligible for pregnancy leave. The latest date to commence pregnancy leave is the date of miscarriage or stillbirth. 

The pregnancy leave of employees that have a stillbirth or miscarriage ends on the date that is the later date of the following: 

• 17 weeks after the leave began 

• 12 weeks after the stillbirth or miscarriage 

This means that an employee that started their pregnancy leave 15 weeks prior to their due date that has a stillbirth or miscarriage on their due date would be entitled to an additional 12 weeks of pregnancy leave – totaling 27 weeks of pregnancy leave. 

Need help managing your employee pregnancy leave?

BrightHR is here to help. Get 24/7 access to employee relations advice lines, Ontario specific policy templates and a fully integrated leave management system. 

Whether you have urgent questions, want to update your internal policies, or ensure that your management team is correctly managing your employees, BrightHR makes it easy to stay compliant. 

Book a free demo today to find out how BrightHR can help your business thrive.