Legislative Compliance

Protected Leave vs. Employment Insurance Entitlements 

August 1, 2023

From jury duty to sudden illness, things happen in life that are beyond our control. Fortunately, Canadian employees have job-protected leave entitlements that can help them manage the unexpected without risking their employment. But job-protected leave and Employment Insurance (EI) entitlements can be confusing, and employers must reference the correct legislation to verify and understand these entitlements. Many employers intertwine these two issues when determining whether the employee is eligible for the requested leave. Let’s look at how these entitlements differ and which legislation to refer to. 

What is a job-protected leave? 

A job-protected leave is an entitlement provided under jurisdictional employment standards legislation. Employees may need these leaves due to various circumstances affecting them, their families, or their dependants. These leaves apply to all employees, regardless of whether they’re part-time, full-time, or on a temporary contract. 

The names for certain leaves may vary between jurisdictions, but each jurisdiction provides similar job-protected leave entitlements, including but not limited to: 

  • Pregnancy or parental leave; 
  • Family caregiver leave; 
  • Personal sick leave; 
  • Organ donation leave; 
  • Jury duty leave; and 
  • Bereavement leave

Employment standards legislation across Canada contains provisions and entitlements for job-protected leaves. Each jurisdiction’s employment standards legislation generally details: 

  • The protected leaves employees are entitled to; 
  • The eligibility requirements they must meet to qualify; and 
  • How much notice an employee must give before taking a job-protected leave, usually with flexibility for emergency circumstances. 

Employees should accept an employee’s request in good faith but be aware of suspicious requests and how to handle them. 

What does “job-protected” mean? 

A job-protected leave legally entitles the employee to return to their job, along with the terms and conditions of employment they had before their leave of absence. If for some reason their position no longer exists when they return to work, their employer must offer the employee a comparable position. 

In general, an employee must not be disadvantaged because of a job-protected leave. For example, employees are protected from termination, discipline, or any other reprisal action for taking a job-protected leave. Additionally, employers must continue contributions towards benefits plans during a leave unless the employee has opted out for the duration of the leave. 

What is Employment Insurance? 

Employment Insurance (EI) is a federal program that provides income replacement benefits for workers across Canada. Job-protected leaves are generally unpaid by the employer except for some limited and specific situations. Where the leave is unpaid, EI benefits may be available to an employee as an income replacement source. 

Here are a few examples of types of EI benefits: 

  • Job loss benefits for individuals who have lost their job through no fault of their own. 
  • Sickness benefits where someone cannot work due to illness, injury, or quarantine. 
  • Caregiving benefits include caregiver benefits for children and adults, and compassionate care benefits where an individual provides care or support to a critically ill or injured person or someone needing end-of-life care. 

The Employment Insurance Act establishes different lengths of income benefits available and eligibility requirements to qualify. 

Which legislation should I refer to? 

When managing a job-protected leave, refer to both your jurisdiction’s employment standards legislation and the Employment Insurance Act, but remember they work separately. Eligibility for EI benefits has no bearing on the employee’s legislative entitlement to a job-protected leave. Likewise, the length of protected leave an employee is entitled to is not affected by any entitlements to EI benefits they may be eligible for. 

Additionally, there may be variations between the different legislation that you should carefully consider. For example, EI eligibility criteria contain definitions for “family member,” “care,” “support,” and “end-of-life care” that may differ from those that apply in employment standards legislation for job-protected leaves. Depending on your jurisdiction, there may also be differences between the length of the protected leave entitlement and the length of benefit coverage available through EI. 

Example 1 

  • In Ontario, the mother of a newborn can take job-protected pregnancy and parental leaves under the Employment Standards Act, 2000 (ESA), subject to the eligibility requirements in the legislation. 
  • The mother of the newborn may also choose to apply for EI benefits as a source of income replacement while on leave. The eligibility requirements and length of time that income replacement benefits are available do not affect the entitlement and length of protected leave under the ESA. If for some reason the employee is denied EI benefits, they are still entitled to their protected leaves.

Example 2 

  • An employee indicates they will take a combined job-protected pregnancy and parental leave totalling one year off from work, then applies for EI benefits. During the protected leave, they may choose to delay their return-to-work date up to the full entitlement period allowed under employment standards legislation in their jurisdiction. 
  • The maximum duration of time where an employee may collect EI benefits may very well end while the employee is still on leave and will not yet return to work. The expiry of the EI benefit entitlement has no effect on the continued entitlement to the job-protected leave. 

Managing legislated job-protected leave requests is a collaborative process, where both the employee and employer have responsibilities. Understanding their own requirements is the first step an employer should take. Our team of HR experts can help you with on-demand support in navigating tricky legislation. Get continued support from Canada’s leading HR content library, which includes jurisdiction-specific job-protected leave policies and other templates. Save time while maintaining compliance with HRdownloads. Request a demo today!