The Federal government announced in the budget that it intends to “stretch” employment insurance (“EI”) parental leave benefits to up to 18 months at a lower benefit rate of 33% of average weekly earnings (find that announcement here, at page 65).  That raises the question:  what is the employer’s obligation to hold a person’s job and reinstate the employee who wants to take the longer leave?  Is there an obligation to now have the same/comparable position to return to after the 18 months? 

 The short answer at this point is “unknown”.  Except in Quebec (which has its own parental insurance plan and is therefore unaffected by the federal changes), EI benefits are payable under the ‎federal Employment Insurance Act, so employees receive EI benefits (including maternity benefits) under that legislation. The right to a pregnancy/parental leave, and the right to reinstatement, arise under the provincial legislation (in Ontario, the Employment Standards Act).

 Since benefits are determined under the ‎EI Act, but the right to a leave (and reinstatement) are entitlements granted by virtue of the provincial legislation, an increase in the length of benefit entitlement does not automatically mean an increase in the length of the leave entitlement.  The provincial governments are likely studying this and may change the provincial legislation to make the leave entitlement correspond to the extended benefit entitlement, but perhaps not. We’ll have to wait and see what the provinces do with the new federal rules. In the meantime, employers should keep an eye on this issue.  In particular if an EI top-up plan is in place in the workplace, employers should consider now how these changes will affect the plan, and whether amendments to the plan are needed in light of these changes.

…