What Every Working Parent Should Know Before Going On Mat Leave (According to an Employment Lawyer)
Episode 108. Figuring out your legal rights at work (before you need them) with Erin Brandt
Taking parental leave should be one of the most protected times in your career. But as employment lawyer Erin Brandt puts it: "There's a lot of discrimination based on gender and pregnancy and parental status."
After representing both employees and employers for years, Erin has seen it all - from job offers withdrawn after pregnancy announcements to parents fired on their first day back from leave. And she's learned that most working parents go into mat leave completely unprepared for what could go wrong.
So before you announce your pregnancy or finalize your leave plans, here's what you actually need to know.
The EI Decision That Could Cost You Thousands
Let's start with the mistake Erin sees constantly: choosing the wrong EI option.
"The current scheme is incredibly confusing," Erin explains. "This choice between 12 or 18 months. And if you're not sure what you're gonna do, then take the 12 months because once you elect you can't change."
Here's why this matters: It's the same pot of money whether you choose 12 or 18 months - just divided differently.
"If you choose 18 months and then go back to work early, then you forfeit a pile of money," Erin warns. "So it's better to actually take the 12, select the 12 months, and then get all the money from the government. And then if you choose to take longer than 12 months, then you take the balance unpaid, but it's the same pot of money."
The bottom line: Choose 12 months. You can always extend unpaid if you need to, but you can't get that money back if you choose 18 and return early.
Communication Is Everything (But It's a Two-Way Street)
One of Erin's biggest pieces of advice is don't assume your employer knows what you want.
"Every employee to think very carefully about what they want their work life to look like, what they want their parent life to look like," she says. "What's an ideal leave for you?"
Because the reality is that some people want to be invited to the holiday party while on leave. Others want zero contact for 18 months. And your employer might make assumptions that don't match what you need.
"What's most critical to success is communication," Erin emphasizes. "Ideally, you're working for an employer where you go to your employer and you say, 'Hey, I'm expecting, and this is what I'd like to do.' And the employer goes, 'Yay. Let's see how we can make that work.'"
But here's where it gets tricky, because you also can't change your mind every five minutes.
"Employees don't have a right to dictate the terms of their employment," Erin explains. If you tell your employer you're taking 18 months and they hire a replacement on an 18-month contract, you can't just decide to come back at three months because you're bored.
The bottom line: Get clear on what you want, communicate it early, and be realistic about what can actually change once plans are in place.
Your Employer Can't Fire You For Taking Leave (But They'll Try to Make It Look Like Something Else)
Here's what every parent needs to know: "It's very difficult legally to fire an employee who's coming back from a protected leave," Erin says. "The legal consequences for firing someone in connection with a protected leave can be quite expensive. And employers know that."
Under the BC Human Rights Code (and comparable legislation across Canada), employers have a legal duty to accommodate and can't retaliate against employees for exercising their rights.
But that doesn't mean discrimination doesn't happen.
Erin has seen it all: "Getting hired, disclosing you're pregnant, and then getting a withdrawal of the job offer - that's very clearly discrimination under the Human Rights Code. Working for a while and getting fired, working for a while through pregnancy and then making up a reason of like, 'Ooh, you're not meeting performance expectations even though you've been here for three weeks' - that's discrimination."
The trick is they'll rarely say it's about your pregnancy or leave. They'll find another reason.
The bottom line: If something feels off about how you're being treated in connection with your pregnancy or leave, trust your gut and get legal advice.
Don't Come Back Before You're Ready
This one surprised me, but Erin was adamant about it.
"Employers don't want low-functioning employees to come back before they're ready," she explains. "I've seen people come back from leaves before they're ready and the employee underperforms, and then the employer comes and gets legal advice from us."
If you're dealing with postpartum depression, you're not sleeping, or you're just not functioning at your normal level - don't force yourself back to work just because that was your original plan.
"If you're not at your best and you're not ready to go back to work and you're gonna underperform and fail and not meet expectations, the employee in that situation is better to take the time that they need to become a more productive, functional human before going back to work."
And here's where short-term disability benefits come in. If your employer offers them (and not all do), they exist specifically for this situation - to support you financially while you're not medically fit to work, without putting your job at risk.
The bottom line: It's better to extend your leave than to come back and fail. And if you have disability benefits, use them.
The Financial Reality No One Talks About
"Financial security takes on a different meaning when you're a parent," Erin points out. "You may have your kids in expensive childcare or daycare or nanny, and you do that so that you can work. And then when there's a change or a conflict at work that impacts your job security, if my income suffers, do I keep the kid in childcare while I look for work? Do I pull the child out because I'm not working anymore? But then how do I job interview with a kid that's not in daycare?"
This is the trap so many parents find themselves in - and it's exactly why some people stay in toxic jobs through their childbearing years.
As I told Erin on the podcast: "I’ve seen a lot of people who are like, 'Well, I'm gonna stick out this corporate shit that I'm dealing with that I hate because I wanna have another kid and I wanna do another mat leave here.'"
Erin's response? "All of these are valid. There's a menu of valid choices. My job as a lawyer is to sit down and talk about the pros and cons of each choice and which one works for you."
The bottom line: There's no one right answer. But make sure you're making an informed choice, not just staying out of fear.
What If Things Go Wrong?
If you do find yourself in a situation where you're being discriminated against or fired in connection with your leave, here's what you need to know:
Under the BC Human Rights Code, you can file a complaint and seek compensation for actual wage loss AND "compensation for the injury to your dignity, feelings, and self-respect."
But here's the harsh reality: "Right now the guidance we're getting from the tribunal is that it's 18 months from the day you file to the date your complaint is processed for filing," Erin explains. "And then it's about five years estimate from filing your complaint to a date of a hearing."
That means your kid could be five years old by the time this goes to hearing.
Which is why many cases settle through negotiation before ever getting that far.
"You get to decide," Erin says. "Do you want to trust this person or not? And whatever choice you make, if it's the right choice for you, then it's the right choice."
Your Action Plan Before You Go On Leave
Based on my conversation with Erin, here's what you should do:
1. Talk to someone who's done it before "Speak to other people who've taken extended leaves," Erin advises. "Figure out what are the things that worked for them that didn't work for them, what they wish they had known."
2. Choose the 12-month EI option Unless you're 100% certain you're taking 18 months, choose 12. You can always extend unpaid.
3. Get clear on what YOU want Do you want updates while you're off? Do you want to be considered for promotions? Or do you want zero contact? Figure this out and communicate it.
4. Don't promise to write transfer memos on your way to the hospital As Erin's colleague told her: "You don't wanna be writing transfer memos on your way to the hospital." Plan ahead and set boundaries.
5. Set up a mid-leave check-in Things change. Your needs might change. Build in a conversation halfway through to recalibrate expectations.
6. Know your rights You can't be fired for being pregnant or taking leave. If something feels discriminatory, get legal advice.
The Bottom Line
"I want people to feel empowered," Erin told me. "I want people to understand what their rights are in British Columbia and across Canada. And at the end of the day, I want to see a world where employers and employees treat each other with respect and with fairness."
Taking parental leave is already complicated enough without having to worry about discrimination or losing your job. But the reality is that these things happen - and being prepared is your best protection.
Listen to the Full Episode
I sat down with Erin Brandt for over an hour and we covered SO much more than what's in this post:
What to do if you get fired (and how severance actually works)
The truth about non-competes and when they're enforceable
How to negotiate a job offer without losing it
What happens if you need to quit
And so much more