There is no shortage of questions for Human Resource Managers about maternity leave, parental leave and benefits for employees. The landscape of protected time off and rights to employment insurance is changing once again.

On November 30, 2023, the federal government introduced the Fall Economic Statement Implementation Act, 2023 (Bill C-59) which proposes to amend several statutes including the federal Employment Insurance Act (EI Act) and the Canada Labour Code (CLC).

Across Canada, entitlement to take leaves from work like Pregnancy and Parental leave arises from employment statutes – like the CLC, or the Employment Standards Act (ESA). Whereas, entitlements to pay during the unpaid leave comes from the federal EI Act.

Currently, EI maternity benefits are only offered to an employee, including a surrogate, who cannot work because they are either pregnant or have recently given birth. EI maternity benefits currently do not apply to adoptive or receiving surrogate parents. This has created a situation where an adoptive or surrogate parent receives their newborn baby with similar care needs of a newborn to a family which has a birthing parent, but receives about four months less in EI benefits. Bill C-59 attempts to enhance equity between these types of families.

Similarly, the CLC and provincial ESA in Ontario for example, currently provide more protected time off from work to those parents who give birth compared to all other parents including adoptive parents and parents using a surrogate.

What will change?

The proposed amendments to the EI Act would provide up to an additional 15 weeks of shareable EI adoption benefits to an employee where one (or more) children is placed with the employee via the adoption. Additionally, an employee whose child (or children) is born via a surrogate would also be eligible for up to an additional 15 weeks of sharable benefits.

If Bill C-59 is passed, the leave period for placement of a child will begin up to five weeks before the week of the estimated date of placement or arrival, or the week of the actual placement or arrival, whichever is earlier, and must end no later than 17 weeks after the week of the actual date of the placement or arrival.

Transition rules will be in effect if and when Bill C-59 is passed for parents who are already claiming parental leave benefits when the new EI benefits come into force (which may include pausing EI parental benefits so that the new EI benefit can be paid). Additionally, employers who provide top-up benefits which differentiate between top of for EI maternity or EI parental benefits will need to consider whether there are human rights discrimination liability should they not offer the top-up more widely.

Regarding protected time off, the CLC would change as well. This means that federally regulated employees will have additional protected time away from work when welcoming a new child into their family via adoption or surrogacy. However, there is not currently a parallel Bill in Ontario to change the ESA. Provincially regulated employees with a new child from adoption or surrogacy will continue to have less overall time off for their family than those with a birthing parent.

Conclusion

If Bill C-59 is passed, we will see more equity within the federal government’s EI regime between families with a birth parent and those with adoptive/surrogate parents. It will be important for employers to be aware of if and when these changes come into effect and decide at an organizational level if top-up polices will extend to the new adoption benefits. Employers who choose not to, should be aware that failing to provide top-ups to adoptive/surrogate parents could lead to discrimination claims.