Parental leave for employee who may not be involved with child

Questions over whether employee will actually use leave for childcare
By Leah Schatz
|Canadian Employment Law Today|Last Updated: 05/15/2019

Question: Does an employer have to provide parental leave to an employee who is the biological father of a baby but it knows the employee isn’t really involved with the care of the child (the mother has a new partner and is estranged from the employee)?

Answer: Human rights legislation generally prohibits employers from discriminating against employees on the basis of protected grounds with respect to the terms and conditions of employment. Depending on the applicable human rights legislation, the protected grounds of family status and gender would likely be engaged. As such, an employer who refuses an employee’s request for leave on the basis of these protected grounds will likely find itself on the receiving end of a human rights complaint. Whether or not the employee is successful is another question and will depend on the unique circumstances of the case.

First, it is reasonable for an employer to expect that this employee is taking the leave for purposes related to parenting the newborn child. Certainly, an employee who is taking his statutory parental leave should not be using that time to go backpacking across Europe. However, an employer should avoid making any assumptions about the employee’s circumstances based on that employee’s gender and family status. Just because the employee is not the primary caregiver does not mean that he is not entitled to take parental leave.