It’s Time Maternity Leave Policies Were Updated For The New Economy

The Employment Insurance system often fails women right when they need support the most. That needs to change.

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maternity leave policies-Jane Marsden poses outside in a park

Photo, courtesy Jane Marsden.

A month before her son, George, would turn one, and one week before her parental leave was set to end, Jane Marsden found out she had an aggressive form of breast cancer. Specifically, a “high grade invasive ductal carcinoma,” which meant she wouldn’t be able to return to work for another 12 months. Instead, a double-mastectomy, chemotherapy and radiation were to follow — oh, and a battle with Service Canada.

Whatever concerns float through a young mother’s mind when she’s diagnosed with cancer, I’m willing to bet the particularities of the Employment Insurance system aren’t top of her list. But the truth is, timing is everything. All it takes to forfeit sickness benefits in Canada is a “late” diagnosis date.
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Jane considers herself fortunate — she was diagnosed before her paternal leave was up, meaning she could, in government-speak, “stack” her benefits and receive 15 weeks of sickness pay. It helped her keep her kids in daycare while she underwent treatment. But she only learned that such a rule even existed when Service Canada initially denied her benefits. Had the diagnosis come even one day after the end of her maternity leave, she would have been, as she says, “screwed.”

It’s absurd that our system would recognize a mother shouldn’t be penalized for not working while taking care of a new baby, and then do exactly that if she happens to fall ill. As it stands, a woman less lucky than Jane, one who has been diagnosed after the end of her maternity leave, would need to work for an entire year, accumulating employment hours, to qualify for any sickness leave. Exactly when she’d need support, it’d be denied.

There’s no reason such a Kafkaesque oversight couldn’t be reformed. We could, for instance, push the work requirement back a year after the end of a new mother’s leave. In that case, a woman claiming sickness benefit would only need to show she’s accumulated the required working hours if she’s diagnosed more than a year after her parental leave expired — meaning she’s actually had the time to accumulate them. But this quirk also speaks to much larger problems.

Employment Insurance is something like a studio apartment created for a single man in the 1940s — when “unemployment” as it was called, was first introduced. Since then it’s had to endure a series of additions: for parents with sick kids, for relatives of other sick people, and for mothers and fathers taking leave to care for new babies. The resulting house, if you can call it that with its ramshackle rooms, has space — has coverage — for many Canadians, but not all.

Women less lucky than Jane, those with unlucky timing for a diagnosis, accident or other unforeseen problem taking them out of the workforce, are not admitted. Neither are women who work part-time, those in the gig economy or on contract work. Shaun O’Brien, legal director of the women’s legal advocacy group LEAF, puts it bluntly: “The EI system is not designed to and doesn’t meet the needs of women.”
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And if we don’t reform EI to better support workers, the problem is only going to get worse. Research predicts a future of increasingly precarious work, already a reality for 20 to 30 per cent of Canadian workers, characterized by volatile job markets accelerated by technological change — exactly the opposite kind of employment the EI system was built to protect.

The current model was based on men’s full-time, full-year employment. It uses an equation to determine eligibility (which operates slightly differently in Quebec). Essentially, the less you worked in the last year and the lower the unemployment rate in your region, the harder it is to qualify. There are reasons for this. EI is meant as a stop-gap, a way to buoy workers during periods of unemployment so that they can more easily return to the workforce, explains Angella MacEwan, a senior economist for the Canadian Labour Congress. Returning to the workforce is the expressed goal. But even for someone who’s been paying in for years, she says, “there are all kinds of these little gaps people fall in.”

EI also only applies to workers who pay into EI, leaving out a whole host of precarious workers. Though the government has a program for self-employed people, the pick-up is incredibly low, MacEwan says. (There were only 749 self-employment claims in 2016/2017, a tiny fraction of the rate employed workers claim.) “It hasn’t been set up in a way that makes sense for self-employed workers,” she says. You have to pay in for one year in advance, and often people don’t know it’s there, or they decide they’re better off saving their money themselves, given the system’s various requirements.

All this spells trouble, especially for women. Only 43.7 per cent of us between the ages of 25 and 54 worked full time in 2015, according to Census data, compared to 56.2 per cent of men, and both numbers were down from 10 years prior.
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“Women are more likely to work part-time due to caregiving responsibilities,” says O’Brien. We’re more likely to be under-employed in precarious jobs and struggle to work the required EI hours. “The most economically disadvantaged women in Canada, such as immigrant women, Indigenous women and women with disabilities are particularly likely to suffer under the system,” she says. For the people who need it most, it’s the hardest to access.

One big change, according to MacEwan, would be to determine eligibility not based on the number of hours worked in a year, but on a person’s larger work history — say employment over the last five years. The government could also work to make EI more accessible for the self-employed, she says. We could allow people to opt-in and opt-out more easily, or create more flexible benefits for those who can’t take a full 12 or 18 months of leave from work.

Instead, the Liberal government has inherited — and is stalled on — a Conservative-era $450-million class action lawsuit with eerie echoes of Jane’s experience. The suit, led by lawyer Stephen Moreau on behalf of a group of mothers, argues women on parental leave were wrongfully denied sickness benefits from 2002 to 2013. “This denial was systematic and negligent,” Moreau says.

The Harper government argued the law during that time didn’t provide sickness benefits for women on parental leave, an oversight it said it corrected by changing the law in 2013 with the Helping Families in Need Act. “All they did was clarify what was already there” in the law previously, Moreau counters. And while the Liberals campaigned on the promise to settle the suit, that hasn’t happened yet.

The case underlines another unnerving part of Jane’s story: What if she wasn’t a practising lawyer, with lawyer friends and a husband to help her? “I had the resources and ability to fight the original decision,” she says.

Brynne Harding, Jane’s lawyer friend who helped her fight the decision, says the seemingly arbitrary rules are grounded in a “totally misplaced” view of motherhood as a choice, instead of as an essential right. Before Jane won her case, Harding, an associate with the Osler, Hoskin & Harcourt law firm in Calgary, had been preparing for a possible pro bono legal challenge under the Charter of Rights and Freedoms and the Human Rights Act, alleging discrimination on the basis of sex. The firm still wants to argue the case.

Not only should we demand a fair system because it’s the right thing to do, but also because the inequality that develops when we don’t. MacEwan underlines that an EI system that doesn’t cover the most precarious workers among us only serves to widen the economic divide, to keep poorer women from accessing assistance, while increasing the benefits for those already better-off. Yes, Canadian women and men now have extended parental benefits for up to 18 months, but that only aids those who already stood to benefit.

We cannot allow women to be penalized for having children, and we can’t allow disadvantaged women to be penalized most of all. Clearly, if women want a benefits system that works for all of us — one with fewer cruel absurdities — we’re going to have to fight for it.