Maternity Leave - 808-1-IPG-017

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Maternity Leave – Part III – Canada Labour Code – Division VII

Revised November 2017

1. Subject

This IPG is intended to clarify and provide guidance on the application of section 206 of Part III of the Canada Labour Code dealing with Maternity Leave.

2. Issue

There is a need to clarify whether female employees undergoing a miscarriage, abortion, or delivering a stillborn child, are entitled to 17 weeks of leave under section 206.

3. Question

Does “confinement” under section 206 include a miscarriage, abortion or stillbirth?

4. Response

This leave is for the woman’s health-related needs surrounding childbirth. Section 206 grants a pregnant woman up to 17 weeks of leave, commencing not earlier than 13 weeks before the estimated date of confinement and ending no later than 17 weeks after the actual day of confinement.

Given the developments made in the field of obstetrics, it is now possible that a woman could give birth prior to the third trimester (final three months) of her pregnancy. In other words, her actual confinement could precede “13 weeks prior to the estimated date of her confinement”.

However, for the leave to apply, the actual day of confinement overrides an estimated date of confinement. In other words, an employee is entitled to 17 weeks of leave after the actual date of confinement, regardless of when the confinement occurs (assuming, of course, that she meets the other conditions  for the leave).

One must, therefore, define “confinement” (and "accouchement" in the French text). The usual medical meaning of “accouchement” is the end of a pregnancy during the third trimester, regardless of whether it is a live birth or stillbirth. The term “confinement” is less precise, but generally encompasses the concepts of delivery or childbirth.

In order to ensure that all appropriate cases be eligible for 17 weeks of leave, Labour Program's policy is to consider any end of a pregnancy after the 19th week of pregnancy to be a confinement. This eligibility period can normally be calculated on the basis of the “estimated date of confinement” provided on the medical certificate required under section 206(1)(b).

This period is selected for two reasons: it reflects women's actual experience that any termination after 19 weeks generally amounts to the same process as childbirth at term and she thus incurs the same health-related needs, and it is consistent with the eligibility period for maternity benefits under the Employment Insurance Act.

Note (1): For any earlier end of pregnancy, she may take advantage of the Sick Leave provisions under Division XIII.

Note (2): Parental Leave under section 206.1(1) would not apply after a miscarriage, abortion or stillbirth, since the employee must have actual care and custody of a newborn child.

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