This article is part of a series of educational blog posts created by a team of Watson Goepel women lawyers in light of International Women’s Day 2023, to empower, celebrate, and encourage women in Canada.
This article addresses the questions that many women and many employers might be interested to know about the workplace laws surrounding abortion in Canada.
“An abortion is a medical procedure and an essential part of health care in B.C. A safe abortion is a medical right in British Columbia.” This statement can be found on the Ministry of Health’s website citing the Access to Abortion Services Act and the Canada Health Act for support.
The Access to Abortion Services Act (a provincial statute) is not about the right to access abortion per se, rather it is concerned with the right to be free from harassment by protestors while trying to access a space that provides abortions. The Canada Health Act (federal legislation) makes no specific mention of abortion services but states generally in the preamble…that continued access to quality health care without financial or other barriers will be critical to maintaining and improving the health and well-being of Canadians.
Leave of Absence Related to The Termination of a Pregnancy
In contrast to the lack of explicit statutory protection for abortion services, section 50 of the British Columbia Employment Standards Act legislates the right for a leave of absence from the workplace for women who have experienced the termination of pregnancy (for any reason). Section 50(2) states:
(2) An employee who requests leave under this subsection after the termination of the employee’s pregnancy is entitled to up to 6 consecutive weeks of unpaid leave, which must be taken during the period that begins on the date of the termination of the pregnancy and ends no later than 6 weeks after that date.
Although the employer is not required to continue wages or salary during termination of pregnancy leave, it is required to continue all benefits and protect an employee’s position until their return to work.
For those employers who do not have private short-term disability benefits, there is some income protection available via the federal Employment Insurance (EI) plan; Service Canada (which administers EI benefits) states on its website that for a termination of pregnancy under 20 weeks, EI sickness benefits are available and for a termination of pregnancy over 20 weeks, maternity EI benefits are available.
Addressing Privacy Concerns
Significant privacy concerns arise in a situation where an employee needs to request a leave for reasons of pregnancy termination. Employers should ensure that they have clear policies available to their employees concerning the stoage of private medical information. Businesses should also consider that there need not be more than one person in the organization in possession of such sensitive information.
Employees should strongly consider that it is likely, not necessary to advise their employer of the specific nature of a request for a medical leave. In the ordinary course, employers are not actually entitled to know the specifics of an employee’s medical issues when they are absent from work, only that valid medical reasons exist which prevent the employee from completing their duties.
Meet The Author
Sarah Hentschel is a Senior Associate in the Business and Litigation and Dispute Resolution Groups at Watson Goepel LLP. Sarah has had cases before the Employment Standards Tribunal of BC, the BC Human Rights Tribunal, the Industrial Relations Board, the Canadian Human Rights Tribunal, the Office of the Information and Privacy Commissioner, the Social Security Tribunal, and the Supreme and Provincial Courts of British Columbia.