While pregnancy itself isn’t a disability, complications may stem from it or arise independently. Maybe you want to start a family but somewhere along the way, a medical condition rears its ugly head, rendering you disabled and unable to work. How exactly do you balance a pregnancy or maternity leave with a disability claim?
Whether your pregnancy or disability came first, the common concern is that insurance companies won’t want to pay for your parental or maternity leave. Additionally, if the insurer sees a parent taking care of a newborn child on their own, they will view that as evidence that the parent is able to return to work.
In this article, as part of our Ultimate Guide to Short-term Disability Benefits, I answer 6 common questions about pregnancy leave, maternity leave, and disability claims — how they affect one another, and what you should be aware of when making a claim
What is the difference between maternity leave (or parental leave) and sick leave?
Maternity leave (or parental leave) and sick leave are both types of excused absence from employment. As I will explore below, you may encounter problems when your sick leave overlaps with your maternity leave.
For a sick leave, your absence from work is because of an illness or disability that renders you incapable of working. While you’re on sick leave, you may be eligible to apply for disability benefits from various sources: EI sickness from the government, short-term disability or long-term disability benefits from your employer.
With maternity leave or parental leave, you’re given an excused absence from work to raise a newborn child in the months after giving birth.
There may be further distinctions between pregnancy leave and maternity/parental leave -- where pregnancy leave refers to the time before the baby is born, and maternal/parental leave is the time after. In Ontario, for example, the pregnant person can get a maximum of 17 weeks of unpaid time off work before the baby is born. Maternity leave or parental leave begins after the child comes into the parents’ care and can last up to 63 weeks (61 when combined with pregnancy leave).
What if I become pregnant while on sick leave due to disability?
In this first scenario, you become pregnant while on sick leave for an issue or medical condition that is unrelated to pregnancy. In this scenario, the disability benefits providers are concerned that the parent will try to extend the sick leave to stay at home to care for the child rather than return to work when the disability ends. They don’t want to become a substitute parental leave payment plan.
So, what do you need to do?
First, you need to see your doctor to have the pregnancy confirmed and get their medical opinion on how pregnancy will affect your current condition. They will need to be specific in mentioning that the status of the disability claim is independent from pregnancy or the role of a new parent. Ask your doctor to write a letter stating this opinion. Once you have this letter, it’s your responsibility to inform your claim provider — whether EI or your insurance company — about your pregnancy and how it might affect your disability.
If you’re receiving EI sickness benefits, you may qualify to switch over to your EI maternity benefits (see section below: Can I get EI sickness benefits and EI maternity benefits at the same time?)
If you’re on a short-term or long-term disability insurance claim, they may keep you on or extend your claim, but they will require regular updates. The specific plan will probably have rules set out for taking maternity leave while you’re on a disability claim. Your insurance company might require you to apply for federal maternity benefits, at which point they can reduce their payments to you by the amount that you receive from the other source. If your sick leave extends beyond the birth of your child, you should prepare to answer difficult questions about how you are able to care for a newborn child but can’t return to work.
What if I become disabled while on maternity leave?
In this scenario, you are off work on maternity leave or parental leave and expecting to go back to work eventually, but you get diagnosed with a medical condition that renders you disabled and unable to return to work. This might be due to a complication from the pregnancy or childbirth; alternatively, it could be a condition that developed independently of the pregnancy.
One of the concerns for people on any type of leave is whether they will be covered for disabilities that happen while on the leave. Normally to be covered under a long-term disability policy, the disability or illness has to start when you are “actively at work.” Most disability plans have been amended or written to continue long-term disability coverage for people who are on an approved maternity or parental leave.
Either way, disability benefits providers don’t want to become a parental leave plan. In this scenario it’s critical to prove that this new condition has made you unable to work. Insurers will often take the view that your disability should end once the pregnancy is over. While this can be the case, sometimes the medical condition or new problems extend after the pregnancy (ex. postpartum depression).
Individuals who get into this situation often want to know what they’re required to do. Do they inform Service Canada and their employer? Should they make an insurance claim and switch from EI maternity leave to sickness leave?
The key point I want to make is that you’ll have to get your doctor to clearly describe the disability, and consider the following:
- Is it a pregnancy complication, or a condition unrelated to the pregnancy?
- If it’s a pregnancy complication, the doctor must clearly diagnose and explain why the complication is disabling. Will it end when the child is born, or will it continue past the birth?
Once your doctor has clearly described your condition, you need to follow the rules for when to apply for disability benefits, even if you are on an approved maternity leave. These rules will be set out in your group benefits plan or employee manual.
Some insurance policies will have a clause saying that disability benefits cannot be paid out for “pregnancy.” Some disability policies include childbirth, miscarriage or abortion in the definition of pregnancy. This means that they wouldn’t be considered complications of pregnancy but part of the pregnancy itself, so disability arising from these circumstances wouldn’t be covered under certain policies. Again, this depends on the policy, so you’ll need to check yours to see how they would deal with those situations.
Can I get EI sickness benefits and EI maternity benefits at the same time?
EI has regular and “special” benefits — sickness, maternity, and parental benefits all fall under the “special” umbrella. You can receive both EI sickness and another special benefit during the same benefit period. This includes maternity and parental leave.
You shouldn’t wait to receive the benefits after one another; rather, you should apply for both as soon as you qualify for both. While you can only typically receive 50 weeks of a benefit in a 52-week benefit period, the maximum number of weeks to be paid may increase to 102 when you combine sickness and maternity.
Be sure to review the criteria and gather the appropriate supporting medical documentation for each of your applications as you must actually qualify for each plan independently.
Can you be fired while on maternity leave or sick leave?
Note: This section is focused on non-unionized workplaces. Unionized workplaces will often have basic protections against being fired while taking maternity or sick leave, and may go even further to protect the employee. If you are part of a union, you will need to consult the union’s collective agreement; this is where the rules for your approved leaves can be found.
People on sick leave and maternity leave have protections under the human rights act and employment standards laws of their province.
Employment standards acts set out the rules for all types of approved leaves — including sick leave and maternity leave. They give people a right to take a period of maternity or parental leave and set out how long the leave can be. They often include a right of reinstatement for an employee on an approved leave.
Ontario’s Employment Standards Act, for example, includes Section 53: Reinstatement
53 (1) Upon the conclusion of an employee’s leave under this Part, the employer shall reinstate the employee to the position the employee most recently held with the employer, if it still exists, or to a comparable position, if it does not.
So, in Ontario, it’s improper for an employer to terminate an employee because they took a sick leave or maternity leave. However, employers are able to terminate any employee if the position no longer exists or there are other legitimate reasons unrelated to maternity or sick leave. The key question is always whether the termination is a direct result of the leave; if so, it’s a wrongful dismissal.
Unfortunately, it’s common for employers to “discover” issues with a person’s employment while they’re on leave because a new person is doing the job and potentially revealing holes in the last person’s work. The new person may be more efficient or discover mistakes made by the person on leave. This is a common reason employers will seek to dismiss a person on leave.
Who pays my insurance plan when I’m on leave?
One key factor that's often overlooked by individuals while on maternity leave or before going off of work for a sick leave is what to do about the benefits they currently receive through their employer.
Mainly, the question is: Who is responsible for paying them?
This depends on your employer and your specific insurance provider. Some employers pay 100% of insurance plans, but this might change while you’re on leave. You might have to pay a portion or the full amount in order to keep your plan in place.
I often hear that individuals aren’t aware of this and don’t plan for it in their budget. People often only find out that their benefits are ending when they receive a notice; so, they lose out on their benefits when they don’t have to. Usually it’s just a matter of not knowing to ask about it. Be sure to contact your HR department to learn who’s responsible for paying before it’s too late.
This advice applies to any pension programs that you’re paying into, as well. You might lose out for the months you’re away; you may be able to contribute while you’re away or make up for your lost contributions once you return to work. Always ask your employer how taking a leave will affect your contributions.
To insurance providers or Service Canada employees assessing claims, it might seem that an individual is taking advantage of the system if they have given birth and now claim to have a disability. The overlap of the disability and pregnancy can seem suspicious if there’s not enough medical documentation to back up the fact that it’s not just a parent who wants to stay home.
To avoid sending up a red flag, your supporting physician has to be very clear about what the official diagnosis is and what type of treatment you are receiving for the condition. They will need to be very specific in detailing when the condition arose and how it precludes you from working. It’s simply not enough for a doctor to send in a statement to your insurers saying that you are pregnant with no additional information as to how it may affect your disability claim or your current condition.
They need to be specific as to what the condition is, how it affects your daily health, and how it keeps you from living day-to-day. They need to show that it limits how you care for yourself and your child. You still need to prove that you’re unable to do any type of work and it’s not simply because you’re home to take care of a child.
The main thing to take away from this article is that it’s crucial to do your research and look at your insurance policies before making any assumptions about how your pregnancy and disability leaves will interact.
If you have already spoken with your HR representative or insurance plan provider and are still unsure of your options, I encourage you to reach out to a member of our support team by calling us toll-free at 888-732-0470, or schedule a free consultation online.
We can help you start out on the right foot with some good advice and the correct information. It can be a very confusing process to combine disability benefits and parental leave, but you can certainly remove some of the guesswork by getting legal advice sooner rather than later.