• Topping Up Maternity and Parental Leave Plans: Does Your Plan Discriminate?
  • February 27, 2015 | Author: Richard Press
  • Law Firm: Davis LLP - Vancouver Office
  • On November 14, 2014, the Supreme Court of Canada released oral reasons allowing the appeal in British Columbia Teachers' Federation v. British Columbia Public School Employers' Association, 2014 SCC 70.

    This decision will impact any employer who provides a supplementary employment benefit (SEB) to employees on maternity or parental leave.

    The Case

    The British Columbia Teachers’ Federation and the Surrey Teachers’ Association (collectively, the “Union”) and the British Columbia Public School Employers’ Association and Board of Education of School District No. 36 (Surrey) (together, the “Employer”) had negotiated a collective agreement that provided SEB benefits for 17 weeks for all parents (birth mothers, adoptive parents, and birth fathers).

    The Union said this was discriminatory: birth mothers who took 15 weeks of maternity leave only had two weeks of SEB benefits left for parental leave. Adoptive parents and birth fathers, the Union noted, got the full 17 weeks of SEB benefits for their parental leave.

    In February of 2011, the Union filed a grievance.

    On November 9, 2012, an arbitrator agreed with the Union. The arbitrator held that maternity leave benefits had a distinct purpose from parental leave benefits. The purpose of maternity leave is to provide a woman a chance to recuperate from the effects of pregnancy and childbirth. The purpose of parental leave is to provide parents an opportunity to care for and bond with their children.

    The Employer appealed.

    On September 20, 2013, the British Columbia Court of Appeal unanimously set aside the arbitrator’s decision. The Court held that the general and underlying purpose of both maternity and parental leave was “the fostering of the health of parents and children” to advance “a healthy environment for the young and their caregivers” on “the occasion of an addition of a new member to a family unit” (2013 BCCA 405 at paras. 26 & 27). The Court held that since “all three categories of those entitled to leave and statutory leave benefits associated with birth or adoption” were entitled to receive the same SEB plan benefits of 17 weeks, there was no discrimination (para. 29).

    On November 14, 2014, the Supreme Court of Canada, in a unanimous oral decision, overturned the decision of the Court of Appeal on the basis that the Court of Appeal failed “to recognize the different purposes of pregnancy benefits and parental benefits.” The Supreme Court of Canada held that the “arbitrator was entitled to reach the conclusions that he did.”

    Implications for Employers

    Employers who offer SEB plans must ensure that birth mothers receive the same amount of parental leave benefits as adoptive parents and birth fathers. This is true, regardless of the birth mother’s entitlement to SEB benefits for maternity leave; reducing parental leave benefits because the birth mother also receives maternity SEB benefits will be discriminatory.

    Employers with offending SEB plans have two main options to come into compliance with the law:

    1. An employer could provide birth mothers additional SEB benefits. Using the example of a 17 week SEB plan that did not distinguish between maternity and parental leave:

    • The employer would provide 15 weeks SEB benefits to birth mothers (i.e. the entire maternity leave period).
    • The employer would provide 17 weeks SEB benefits to birth mothers, adoptive parents, and birth fathers.
    • The result would be that birth mothers could access up to 32 weeks of SEB benefits, while birth fathers and adoptive parents could only access the 17 weeks of parental leave SEB benefits.
    • Alternatively, the employer could provide two weeks SEB benefits to birth mothers, adoptive parents, and birth fathers, so that birth mothers would still get 17 weeks, but birth fathers and adoptive parents, would only get two weeks of SEB benefits.

    2. An employer could provide SEB benefits for parental leave only. Again, using the example of a 17 week SEB plan:

    • The employer would provide no SEB benefits to birth mothers for maternity leave.
    • The employer would provide 17 weeks SEB benefits to birth mothers, adoptive parents, and birth fathers for parental leave.
    • The result would be birth mothers (along with adoptive parents and birth fathers) would all be able to access 17 weeks of SEB benefits.

    Regardless of which option an employer selects, it is recommended to have separate policies for maternity and parental leave to emphasize the difference between these leaves and to avoid potential conflation of the concepts of maternity and parental leave and an accompanying claim of discrimination.