Understanding Miscarriage Leave Entitlements Across Canada

According to the Public Health Agency of Canada, 15% to 25% of pregnancies end in a miscarriage. Yet, many employers do not have a plan in place for supporting employees who have experienced miscarriages, stillbirths, or pregnancy loss. 

Miscarriage can be a devastating experience both physically and emotionally, and providing support and resources to employees during such a time is crucial for creating a positive work environment and inclusive workplace culture. For Canadian employers, it’s important to understand the legislative framework around miscarriage leave and implement compassionate, supportive policies that comply with provincial and federal regulations.

Miscarriage Leave in Canada: Legal Framework

There is no specific federal legislation addressing miscarriage leave across all of Canada, but various provinces have developed their own provisions for employees who experience a miscarriage. The approach varies depending on jurisdiction, making it essential for employers to be aware of the applicable laws in their province.

• Federal jurisdiction: Under the Canada Labor Code, miscarriage is recognized within the broader context of pregnancy loss. Employees under federal jurisdiction may be entitled to medical leave or compassionate care leave, depending on the circumstances. The code allows up to 17 weeks of unpaid medical leave in case of pregnancy loss after 19 weeks, or up to five days of personal leave for health-related issues, which could apply in the event of a miscarriage earlier in a pregnancy.
• Ontario: Ontario’s Employment Standards Act provides for pregnancy leave if a miscarriage occurs less than 17 weeks before a baby’s due date. In this case, employees are entitled to up to 17 weeks of unpaid leave. If the miscarriage occurs earlier than 17 weeks before a baby’s due date, the employee may take personal emergency leave or sick leave, depending on the circumstances.
• British Columbia: British Columbia’s Employment Standards Act provides for maternity leave in cases of miscarriage or stillbirth. Employees can take up to six consecutive weeks of leave starting on the date a pregnancy ends. An employer may request a note from a doctor or nurse practitioner that says when the pregnancy ended. If the employee is unable to return to work for reasons related to the termination of the pregnancy, the leave can be extended for another six weeks (for a total of 12 weeks). The words “related to the termination of the pregnancy” cover all aspects of medical issues, including physical, emotional, or psychological loss or complications.
• Alberta: Under Alberta’s Employment Standards Code, employees are entitled to three unpaid days of bereavement leave after pregnancy loss. The bereavement leave is available to both a person who was pregnant and the spouse or common-law partner of a person who was pregnant. If pregnancy loss occurs within 16 weeks of the estimated due date, the person who was pregnant may also be eligible for maternity leave.
• Quebec: Under Quebec’s Act Respecting Labor Standards, if a pregnancy loss occurs before the beginning of the 20th week of pregnancy, the person who was pregnant has the right to be absent for up to three weeks without pay. If termination of pregnancy occurs as of the first day of the 20th week of pregnancy, the person is entitled to maternity leave or leave in connection with pregnancy or childbirth for a maximum of 20 weeks without pay.
• Other provinces: Each province has slightly different rules, and employers must consult their local laws. Many provinces, including Saskatchewan and Manitoba, include provisions for general sick leave or personal leave that could apply to miscarriage.

Recommended Approaches for Employers

There are at least four recommended approaches for employers.

1. Compassionate policies: Regardless of the legal requirements, employers should prioritize empathy. Offering paid leave, even beyond the minimum requirements, can demonstrate a strong commitment to employee well-being. This could take the form of extended sick leave, bereavement leave, or personal days to allow the employee time to recover physically and emotionally.

2. Clear communication: Ensure that your employees are informed of their entitlements to miscarriage leave. Clear communication about policies helps employees feel supported and encourages them to approach HR when they need assistance.

3. Flexible return-to-work arrangements: For many employees, returning to work after a miscarriage can be emotionally challenging. Offer flexible work options such as part-time hours, remote work, or gradual reintegration to accommodate the employee’s needs during this difficult time. Disciplining or terminating an employee for reasons related to pregnancy, miscarriage, or pregnancy loss constitutes discrimination under human rights legislation.

4. Mental health support: Miscarriage can take a significant emotional toll. Offering access to mental health resources, such as counseling through an employee assistance program, can provide critical support during the grieving process.

Conclusion

Understanding miscarriage leave entitlements and adopting supportive policies is essential for fostering a compassionate work environment. By staying informed of provincial laws and going beyond the legal minimums, employers can ensure they are providing the care and flexibility their employees need during a difficult time.

Lexa Cutler is an attorney with SpringLaw in the Toronto area. © 2024 SpringLaw. All rights reserved. Reposted with permission of Lexology.