Ask the ExpertCategory: QuestionsChanging Details of an Employee’s Maternity Leave
hri_Admin Staff asked 4 years ago

Hi,

I have a tricky situation and am looking for some input and help from anyone that might be able to provide it.
We have an employee who is currently on Maternity Leave. She has asked that instead of coming back in two months like she was supposed to, if she can do other work (not the work she was previously doing but somewhat related) from home on a part-time basis for 6 months. After the 6 months, she would come back to her other duties (which include supervisory duties) even though on a part-time basis but would work in the office again.

I have a few questions/concerns about how we would go about doing this.

She has requested that we make these accommodations, and I don’t want it to seem like we are imposing these changes on her (decreasing her hours and giving her some different responsibilities) after a maternity leave. My understanding is that when someone’s job duties change, it is a different position and therefore you need a new contract. But how would we go about getting her out of her current contract ? Does she resign? Because she will be back in her previous position after the 6 months is done.

We also can’t decide whether we should be changing her job title. She will have a different role and work from home so in my mind that’s a change of job title as well, but then we have to give her the previous one back after the 6 months.

If anyone has any clarifying information or some guidance that would be much appreciated.
Thanks

3 Answers
Glenn Demby Staff answered 4 years ago

Like all other jurisdictions, Manitoba (ESC Sec. 60(2)) requires you to reinstate an employee after maternity leave at the same or equivalent position with at least equal salary and benefits. But Sec. 60(3) makes an exception for lay off, termination or failure to reinstate “for reasons unrelated to the leave.” Accordingly, I think you do have to extinguish rather than amend the current agreement.
Although you need to talk to a lawyer, I’d suggest you negotiate a new employment contract that starts with recitals stating the situation, “WHEREAS, employee wants to return….” and makes it clear that this is a new employment agreement and not a continuation of the prior one. Be ultra careful not to purport to have the employee waive her ESC reinstatement rights since that’s illegal. To totally eliminate the risk that the new deal may be interpreted as an attempt to evade your ESC reinstatement obligations, you might want to pay the pre-leave wage for at least part of the 6 months. That’s something you need to talk to your lawyer about.
I’m also going to ask our payroll expert, Alan McEwen to weigh in on this. Alan: What do u think?

Glenn Demby Staff answered 4 years ago

Serena: My colleague, Alan, has a slightly different take. Here’s his reply:
I’d argue against making this a separate contract, i.e. a separate employment. This might make it look like she has not returned from her maternity leave, i.e. quit which will affect her ability to claim EI in the future. However, there does need to be a written agreement that clearly indicates the failure to return to her existing position was at the employee’s request and that what she is asking for is a phased return to her old position. I’d rather emphasize that this is a bridge between the leave and her return, rather than a standalone new employment contract.
And I don’t see that a change in position or title necessarily leads to a new employment contract. It might mean a change in the terms and conditions of employment, but not a separate period of employment. If you treat the phased return as its own period of employment, then there will have to be another when the person finally does return to her old duties.
But your advice to consult a knowledgeable lawyer is also good.
*****
Glenn again: Hope this helps and do talk to a lawyer before deciding what to do.

Glenn Demby Staff answered 4 years ago

Thanks for your replies Glen and Allen. I will consult a lawyer but you have given me some good different perspectives to take into consideration.