The abortion pill Mifegymiso has been making headlines this month following uncertainty over whether provinces would be including the drug in their formularies. Earlier this week, the College of Physicians and Surgeons of B.C. and the College of Pharmacists of B.C. told the Globe and Mail they’re planning to tell their members that pharmacists can distribute the pill directly to women, despite Health Canada guidance that says only doctors can do so.
It raises the question whether or not employers will cover the drug in their benefits plans, which Benefits Canada wrote about earlier this week. But another issue is what level of responsibility employers have around accommodating an employee who has an abortion or miscarriage.
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In Ontario, an employee who has a miscarriage or stillbirth within 17 weeks of her due date is eligible for pregnancy leave, according to the province’s Employment Standards Act. But leave after an abortion doesn’t fall under the Act, a spokesperson for the Ministry of Labour told Benefits Canada in an email. She did, however, point out employers with at least 50 employees are required to provide 10 unpaid personal emergency leave days per calendar year, which employees could use after having an abortion.
Daniel Chodos, a partner at Whitten & Lublin LLP in Toronto, notes the Employment Standards Act manual doesn’t contain any reference to abortion. “I think you could make a fairly persuasive argument that it’s the intent of the government in drafting the legislation as it did to include an abortion in the category of a miscarriage,” he says.
“If I were approached by a company who said we have a female employee who told us she had an abortion and wants a little time off, I would advise them that unless it provided an immense hardship for them, they should accommodate her under those circumstances.”
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In other provinces, employers are required to go further. Quebec’s Act Respecting Labour Standards states that an employee who has a miscarriage or an abortion before the 20th week of pregnancy is entitled to three weeks of unpaid leave. If the employee’s pregnancy ends during or after the 20th week, she’s entitled to 18 weeks of leave, and may qualify for maternity benefits under the Quebec Parental Insurance Plan. Her spouse, if covered by the act, is eligible for two days of paid leave and three days of unpaid leave. In all these situations, however, the employee needs to provide a medical note explaining the abortion or miscarriage.
B.C.’s Employment Standards Act allows employees who have a miscarriage or abortion to take up to six weeks off without pay, regardless of the length of their employment. They’re also eligible for a further six weeks off, if required for medical reasons. Employers can, but don’t have to, require a medical certificate.
“An abortion stops a pregnancy and it takes the body some time to return to its pre-pregnancy state, the duration of which depends on how advanced the pregnancy was when it ended,” Shannon Stettner, a lecturer in women’s studies at the University of Waterloo, told Benefits Canada in an email. “There is an interruption of a number of physiological processes, so a leave from work while the body returns to its pre-pregnancy state is absolutely a good idea.”
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It’s also important for employers to respect employee privacy while providing leave, Stettner added.
In Quebec, at least, employees don’t have to explain whether they had a miscarriage or an abortion, according to Sandra Fournier and Guylaine Lacerte, lawyers at KSA Avocats in Lévis, Que., noting in an email that the medical certificate must include a diagnosis, the employee’s ability to perform her work and the anticipated length of her absence.
“However, the specification and details as whether the employee had a miscarriage or an abortion is unnecessary in the context where the employee can get an accurate medical certificate justifying her right to a maternity leave without getting into much detail,” Fournier and Lacerte say. “The employee only has to inform the employer of the termination of her pregnancy.”
An employee’s right to privacy, however, must be balanced with an employer’s rights as a manager, they note. While an employee doesn’t have to disclose whether she had a miscarriage or abortion, she must tell her employer her pregnancy ended and provide an anticipated date of return.
“Such invasion of privacy is motivated by the employer’s legitimate interests,” Fournier and Lacerte say. “Please note that only necessary information has to be shared with the employer and that he could violate employee’s privacy right by asking her details about the termination of her pregnancy.”
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