Employers are under no obligation to offer benefits. But if they do, they must offer them to all staffers in the same situation or face potential discrimination claims.

Over the past few years, the British Columbia Teachers’ Federation has grieved the top-up policies of three school boards that barred teachers from receiving benefits for both pregnancy and parental leave. As a result, women who gave birth couldn’t receive top-up payments for time spent caring for their newborns if they took the benefit during their pregnancy leave. Adoptive parents and birth fathers, however, could receive parental leave top-up benefits, simply because they didn’t require time off to recover from childbirth.

“It was [discrimination] on the basis of sex and family status . . .,” says Robyn Trask, staff lawyer for the union.

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While one of the employers dealing with the issue, the Qualicum school district, agreed with the union in 2014 that employees who gave birth should be eligible for both kinds of benefits, they couldn’t reach an agreement on the details. In January 2017, arbitrator Stan Lanyon ruled the parental benefit availability would be retroactive to July 2015. That was after, he wrote, the Supreme Court of Canada ruled in the union’s favour on a similar dispute involving the Surrey school district. The Qualicum district should have known it could be liable for increased benefits, he found.

The Supreme Court’s 2014 ruling was brief and simply upheld the arbitrator’s original decision in the Surrey case, in part because the B.C. Court of Appeal hadn’t recognized the different purposes of pregnancy and parental benefits in its earlier decision on the matter. The pregnancy component supports recovery from “a unique health experience,” says Trask, while parental benefits allow employees to care for and bond with their new children.

Lessons for other employers

While many companies don’t offer top-up benefits at all, “the employer that does opt to provide a lot of benefits must do so in a manner that’s not discriminatory,” says Richard Press, a partner in the employment group at DLA Piper (Canada) LLP in Vancouver.

But some employers, he notes, are taken aback when their well-intentioned policies lead to legal trouble. “They feel no good deed went unpunished . . .. We live in a society where our sophistication on human rights is so high that sometimes it’s not apparent why we’re discriminating, to the average person, in my view.”

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But cutting top-up benefits entirely may mean the best candidates will choose to work elsewhere. If an organization wants to attract star employees but can’t afford top-up payments for all 52 weeks, it could offer the benefit for either pregnancy or parental leave, says Kathryn Bird, a partner at Hicks Morley Hamilton Stewart Storie LLP in Toronto.

“There are a number of employers that only provide top-up during the Ontario pregnancy leave provisions, so the 17 weeks,” says Bird, adding that while larger employers may offer top-up payments through parental leave as well, few provide benefits only for that purpose.

Press, however, notes that only offering parental leave benefits would be odd. “Normally, one would assume you’d get a top-up immediately on the birth of the child and that top-up may end after a period of time,” he says.

Preventative care

If an employer faces a challenge to its top-up plan and chooses to settle, it should also review its policies “to ensure you’re not providing a disparate benefit to someone on the basis of a protected ground,” says Bird. “Not to say where there’s smoke there’s always fire, but certainly, if you’re receiving a claim that has legs, it’s going to come again because you’re likely to have another person that finds themselves to be either pregnant or a parent.”

Sara Tatelman is an associate editor at Benefits Canada.

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Copyright © 2017 Transcontinental Media G.P. This article first appeared in Benefits Canada.

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