THE STANDING SENATE COMMITTEE ON SOCIAL AFFAIRS, SCIENCE AND TECHNOLOGY
OTTAWA, Thursday, November 8, 2018
The Standing Senate Committee on Social Affairs, Science and Technology, to which was referred Bill C-243, An Act respecting the development of a national maternity assistance program strategy, met this day at 10:30 a.m. to give consideration to the bill.
Senator Chantal Petitclerc (Chair) in the chair.
The Chair: Good morning, everyone. Welcome to the Standing Senate Committee on Social Affairs, Science and Technology.
I’m Senator Chantal Petitclerc from Quebec. I’m pleased to be chairing this meeting.
Before we begin I would like to ask my colleagues to introduce themselves.
Senator Seidman: Good morning. Judith Seidman, Quebec, and deputy chair of the committee.
Senator Poirier: Rose-May Poirier from Saint-Louis-de-Kent, New Brunswick.
Senator Ravalia: Mohamed Ravalia, Newfoundland and Labrador.
Senator Mégie: Marie-Françoise Mégie from Quebec.
Senator Munson: Jim Munson from Ontario. I live in Ottawa, Ontario, Canada.
Senator Dasko: Donna Dasko, Ontario
The Chair: Thank you.
Today we’re continuing our study of Bill C-243, An Act respecting the development of a national maternity assistance program strategy.
I would now like to introduce our witnesses.
Thank you for joining us this morning.
On our first panel, from the National Council of Women of Canada, we have Sheila Pepper, Vice President, Social Development.
We’re also joined by Roch Lafrance, the secretary general of the Union des travailleuses et travailleurs accidentés ou malades.
Welcome. We will begin with Mr. Lafrance. I remind you of seven minutes for your opening remarks.
Roch Lafrance, Secretary General, Union des travailleuses et travailleurs accidentés ou malades: First, thank you for inviting us to participate in this consultation. We want to point out that we support the adoption of Bill C-243 as it stands. We have some information to share. However, we’re satisfied with the bill as it stands, following the amendments made by the House of Commons, in particular the removal of clauses 6 and 7 of the original bill. I’ll discuss the issue of clauses 6 and 7 a little later.
We’re not sure that the title indicates exactly what the bill contains. However, we understand that the bill’s main purpose is to conduct a consultation to establish a pan-Canadian preventive withdrawal program for pregnant workers.
We won’t comment on the title, but we think that it should be more consistent with the purpose of the legislation. However, we consider this a minor detail.
We agree that this consultation, which is included in the bill and described in clause 3, should be held. However, we want to point out that, as indicated in the bill, the provincial jurisdictions must be respected. This brief comment shows that we believe that the ability to access a preventive withdrawal program for pregnant workers, such as the one in Quebec, would be a major step forward for working women in Canada.
Quebec has had this type of program since 1981. The right to preventive withdrawal for pregnant or breastfeeding workers is set out in the Act respecting occupational health and safety. This was an important step forward for women at the time. In particular, it helped end the terrible trade-off that women were forced to make when they were pregnant. They needed to earn a salary to support their families, but they risked losing their babies or mortgaging the health of their unborn children when their working conditions were dangerous.
We want to emphasize that, in addition to the fact that we granted the right to preventive withdrawal, the program was a major step forward for public health in Quebec. Obviously, this has helped to protect working women. However, given the need to document the working conditions of women, this has also helped to dispel the myth that women’s work is less dangerous than men’s work, a belief that still exists today. The studies showed us that the women’s work was just as dangerous.
This has also prevented many of the work-related injuries sustained by women. The experience has been mainly positive and has led us to believe that the public interest would be better served if working women in Canada had access to a program with the same objectives. As a result, we think that the bill should be adopted in its current form.
However, we want to draw your attention to the wording of the first paragraph of clause 3 and its paragraph (b). The text specifically refers only to the pregnancy period. We think that the breastfeeding period should also be included, as is the case in Quebec.
As mentioned earlier, we want to revisit the matter of employment insurance, or EI, having seen that witnesses were invited to appear on that very issue. We were very glad that those provisions were taken out of the original bill, and we want to tell you why the House of Commons made the right decision in removing them.
It’s important to understand that a pregnant worker’s right to preventive withdrawal is not the same as the right to maternity leave, but that’s more or less how it was treated in the original bill. Preventive withdrawal is meant to address unsafe working conditions that pose a risk to a worker’s pregnancy, not the pregnancy itself.
That is why Quebec’s system, like other such regimes around the world, first requires that efforts be made to modify the working conditions or reassign the worker to a position that does not endanger her health, before she is permitted to stop working. The basic principle is to modify unhealthy or hazardous working conditions, not to grant the worker leave.
We do not think the employment insurance regime is the right vehicle for this program because it already includes maternity benefits and these are two separate issues. The program we are talking about deals with working conditions, as opposed to maternity leave, so we don’t think the current EI system has the resources or expertise required to administer the program. What’s more, program administration has to incorporate a sizable medical component, and the EI system does not have the appropriate personnel to manage that, in our view.
Second, we don’t see why it’s necessary to set out, in legislation, the time period for a preventive withdrawal, as clauses 6 and 7 of the initial bill did, granting a worker access to preventive withdrawal at the end of the pregnancy. Take, for example, a woman who works in a daycare where there is an outbreak of the chicken pox or measles. Clearly, the worker will not wait until the end of her pregnancy to stop working at the daycare. That’s why we believe preventive withdrawal should be available in cases where the working conditions pose a risk to the worker’s health. We can share other examples with you during the discussion.
It should be noted that, in Quebec, 94 per cent of preventive withdrawals are granted before the 23rd week of pregnancy. Making preventive withdrawal available only at the end of a worker’s pregnancy will be of no benefit. Furthermore, certain EI provisions would penalize pregnant workers who apply for preventive withdrawal. The EI system compensates workers at a rate of 55 per cent of their earnings, whereas Quebec’s regime compensates them at 90 per cent of their earnings, without the waiting period. Also, the employer and the worker continue making contributions to the employer’s pension fund, which is not the case when the worker receives EI benefits.
It is important to understand that, if the worker applied for preventive withdrawal under the EI system, she would limit her ability to claim regular or special benefits in the future, after her pregnancy.
In conclusion, we welcome the proposal to conduct Canada-wide consultations on the right of pregnant workers to access preventive withdrawal, and we recommend that the consultation also address the issue of nursing mothers. Lastly, we advise against reintroducing into Bill C-243 clauses 6 and 7 of the original bill, which sought to amend the Employment Insurance Act. Thank you very much.
The Chair: Thank you, Mr. Lafrance.
Now, Ms. Pepper, your opening remarks.
Sheila Pepper, Vice President, Social Development, National Council of Women of Canada: I thought the questions would be next.
The Chair: No, we will hear from both of you. Then, if you are fine with that, we will ask questions.
Ms. Pepper: That is fine. No problem at all.
As you probably know from your research, the National Council of Women of Canada, has been an advocacy organization of Canadian national federates from many womens’, families’ and communities’ associations founded by Lady Aberdeen in 1893. We work with these organizations and governments at all levels to improve conditions for all of these groups.
Each year, we have brought to your government many well-researched — and considered by all councils — resolutions, policy papers, letters and petitions on many current issues facing our citizens.
Our local and provincial councils across Canada contribute to presentations such as this, speaking from our policies of almost the last 40 years on aspects of this subject of maternity assistance. Examples are midwifery services in Canada, policy on reproductive rights, amendments to the national Employment Insurance Act and maternity benefits protecting pregnant women in the workplace, and women in precarious employment.
We are pleased to have been asked to present to this Senate committee. We are impressed with the thorough study and consideration you have given this issue already to protect and help women in many different workplaces to safely continue their pregnancies to birth, and beyond, for healthy babies and to the toddler stage.
We wish to point out, however, that some flexibility needs to be included for the timing, type and extent of the maternity assistance program. We understand you have extended the assistance timing before and after birth, considered adoption and surrogacy, but the Employment Insurance program is limited for those in part-time, contract and self-employed jobs, which many women near poverty have and are experiencing.
Some women have various difficulties during pregnancy and childbirth which may not be recognized in the EI system, such as some long-term recoveries from trauma during the birth and having considerable caregiver help outside the family or those with no friends or family to help. Others, such as those who experience stillbirth or miscarriage still must be supported for some time before returning to work. They qualify on the “before birth” time but not after.
Many obstetricians have firm guidelines they must follow. I believe midwives are more flexible and can find many non-medical solutions in various exceptional birth situations. These, however, may not be recognized by the Employment Insurance system for approval. In vitro fertilization may also have other complications to be considered in a more flexible system of support. Thus we must “think outside the box” when making firm conditions on the allowable support before and after birth.
Several life-threatening illnesses may complicate the situation such as fetal alcohol syndrome and HIV/AIDS, both of which the national council have written policy in years past.
We urge you to consider other exceptional possibilities when you complete your recommendations on this vital program of support.
Our provincial home care systems vary across Canada, as you know. Some provide for more inclusive support before and after birth than others. As with provincial medical systems, the home care varies in its coverage for many maternal situations. Please consider in this legislation requiring the provinces to standardize the entire support system for their maternity assistance program.
Many of us know of our personal experiences of several decades ago, when the national maternity support system was considerably less accommodating. Choice is important when faced with various time frames of support before and after birth. We are glad to see these included.
We recall the studies nearly 40 years ago, and more recently too, on the different effects of smoking, drugs and alcohol on pregnant and nursing mothers, the short and long-term effects on the children and the extra supports they would need. You would probably know the results of many other studies, as do we all.
If we wish no new changes on the public purse, we need to consider many exceptions to the norm of support in this legislation for rural and Far North “problem” births and their additional unexpected costs of travel, accompanying medical support and accommodation for families in such circumstances.
Thank you for this opportunity of including our council, which has a long view and history of considering many various circumstances around this very important matter of maternity assistance and benefits.
The Chair: Thank you very much. Thank you to both our witnesses. We are ready to proceed with questions.
Before we start, I have a question.
I have a question for you, Mr. Lafrance. You mentioned the title. I don’t want to put words in your mouth, but you seemed to suggest that it didn’t accurately reflect the bill. That brings to mind something one of our colleagues, Senator Dupuis, said. She made the same point at second reading. She went as far as to say that either the bill should be changed or the title should. I’d like you to elaborate a bit on that, if you would.
Mr. Lafrance: The title of the bill is An Act respecting the development of a national maternity assistance program strategy, suggesting that it deals with maternity leave and a broad range of maternity-related measures. When you read the bill, however, it is clear, both from the preamble and clause 3, that it seeks to establish consultations on a preventive withdrawal program for pregnant workers.
No matter how you read it, the title doesn’t match the bill. The title was chosen at a time when the idea was to extend the period of maternity leave provided for in the Employment Insurance Act. Although that’s no longer the case, we don’t see it as that big of a deal because a title is just a title. Anyone who reads the bill will understand that it is meant to address the issue of preventive withdrawal. It would nevertheless make sense to change the title and refer to a national preventive withdrawal program for pregnant and nursing workers, rather than a national maternity assistance program.
The Chair: Thank you for that clarification.
Senator Seidman: Thank you both for your presentations.
Mr. Lafrance, I want to ask you some questions. Quebec ought to be congratulated for taking a public health approach and for having developed preventive withdrawal into an occupational health and safety regime as far back as 1981. That is pretty impressive.
It’s true we want women to consider more nontraditional jobs. As you said, there is a certain mythology around women’s professions and that they are much safer than those of men. We only have to stop to think of the risks that are there, for example, in a lot of the allied health professions, to say nothing, as you suggest, for teachers themselves.
You say in the Quebec program, about 90 per cent of salaries are guaranteed, and that 94 per cent of preventive withdrawals are granted in the twenty-third week of pregnancy.
Do you know if Quebec has data on the system, since they have had it for a very long time? Do they have data on the usage and cost to the system?
Second, what about small employers who don’t have a way to substitute the job? How did they deal with it?
Mr. Lafrance: You asked a number of questions, so I’ll try to answer each of them briefly. Yes, all kinds of statistics are available. I have some here, in fact. Keep in mind that Quebec’s regime is administered Canada-wide by a body akin to a workers’ compensation board. It now bears a long, complicated name, the Commission des normes, de l’équité, de la santé et de la sécurité du travail, or CNESST. Benefits are paid at a rate of 90 per cent of the worker’s net income, in accordance with two separate acts. Under the act respecting occupational health and safety, women accessing preventive withdrawal are to be compensated in accordance with the act respecting industrial accidents and occupational diseases. The compensation provisions are the same. In Quebec, the benefit rate is 90 per cent of the worker’s net income.
How does the regime work, especially for small employers? A premium is deducted from the payroll of every employer in Quebec. They are all required to pay into a workplace accident fund, with a special contribution to the preventive withdrawal program.
In 2017, for instance, the average premium rate deducted by the CNESST was 1.77 per cent of payroll, and of that, 0.2 per cent went to the preventive withdrawal program. For every $100 in payroll, then, 20¢ goes to the preventive withdrawal program and roughly $1.70 goes to workplace accidents.
The premiums are the same for all employers. When a pregnant worker is told that she must stop performing her work duties, the employer first tries to reassign her and determine whether certain working conditions can be modified. If that’s not possible, the worker stops working and the CNESST pays her an indemnity based on the amount contributed by all employers, in other words, 20¢ for every $100 in payroll.
For small employers especially, it is worth noting that, when a worker who earns $20 an hour is reassigned to a position that pays $14 an hour, further to her working conditions being modified, the employer still has to pay her $20 an hour. The CNESST does, however, reimburse the employer. This incentivizes the employer to keep the worker, who already works there and knows the business. Even if her job changes, she is familiar with the culture, which makes things much easier than having to return to the job market. The additional costs to the employer are covered by the CNESST.
In terms of beneficiaries, roughly 32,000 to 33,000 workers take advantage of Quebec’s preventive withdrawal program every year. That includes workers who are reassigned. Approximately half of that number are women who have stopped working completely. The rest may have stopped working or been reassigned for specific periods of time. Some are reassigned for the remainder of their pregnancy. About 50 per cent of the workers who take advantage of preventive withdrawal are off work for the remainder of their pregnancy, 25 per cent are reassigned to other duties until the end of their pregnancy, and 25 per cent are reassigned for a period of time and then stop working for a period of time.
The Chair: Thank you very much. Senator Mégie, the sponsor of the bill, will go next.
Senator Mégie: I have a question for Mr. Lafrance.
From your remarks, I gather that you support the bill, as do your members. How do you think unions and employers can work together towards a solution? Given that small employers have a harder time, have you come up with ways to deal with that or do you have any suggestions for employers to help them support these workers?
Mr. Lafrance: Quebec’s preventive withdrawal program is a tremendous source of pride for all Quebecers and is universally supported. Under the occupational health and safety regime, when a worker or employer isn’t satisfied with the decision, they can appeal it and request a review. In 2015, some 52,000 reviews were requested under Quebec’s health and safety regime. Of those, only 208 involved preventive withdrawal, even though 33,000 workers applied for it. As for the workplace accident regime, we are talking about roughly 100,000 people, so it’s disproportionate.
The program has universal support because employers who need help to reassign employees have access to funding. Employers who don’t want to deal with it have to hire someone else. That’s their problem. Employers in Quebec don’t question the program. Of course, they would prefer if the program were funded by the government instead of through their contributions. However, if you ask employers which premiums they don’t want to pay, they will most likely say the workplace accident fund and health insurance. They have nothing against the preventive withdrawal program, in particular. It’s a general comment that applies to all the funds they have to pay into.
Senator Mégie: What advice would you give an employer outside Quebec?
Mr. Lafrance: It is our view that, if they had such a regime, employers would participate the same way that those in Quebec do; of course, the regime would have to be provincial, with a federal one for federally regulated businesses. They would realize that it benefits them to keep these workers in the workplace.
When the regime was introduced, it came under tremendous criticism. Employers didn’t want to keep these workers, claiming that the women didn’t want to work because they were pregnant and should therefore stay home. Employers came to the collective realization that such an attitude was costly, and the contribution rate went up. They realized that the program was very beneficial financially speaking and that it meant they could keep these workers. When a worker who is taking advantage of the preventive withdrawal program is told by her employer to go home because she doesn’t want to work during her pregnancy or maternity leave, she will probably look for another job.
It’s a change in culture. People in Quebec don’t question the program. Once it’s established, employers will see the benefit.
Senator Mégie: Very good. Thank you. It’s a model to follow.
Senator Poirier: I have some questions. You said that about 94 per cent of preventive withdrawals begin before the 23rd week of pregnancy. I assume that, once the baby is born, the mothers are entitled to maternity benefits under the employment insurance program. If the employee is gone for a year to a year and a half, is their job guaranteed when they come back?
Mr. Lafrance: Yes, their job is guaranteed. The employer can’t dismiss a worker because she is pregnant or because she opts to take advantage of the preventive withdrawal program. Her job is protected.
It works the same way as Quebec’s industrial accident and occupational disease regime. When the worker stops working because the employer is unable to reassign her to another position, she is still considered to be employed by the employer, so she continues to gain seniority and to participate in the pension plan, insurance plan and so on.
The preventive withdrawal ends a month prior to delivery. From that point on, unlike the rest of Canada, Quebec has its own system for maternity leave, the Québec Parental Insurance Plan. The benefit period varies. It isn’t necessarily a year. The two regimes work in conjunction with one another so that, when the worker is ready to go back to work, the employer is required to take her back, unless the business has closed. Otherwise, it’s as though she continued working.
Senator Poirier: Ms. Pepper, our witness last night, Ms. Ballard, explained the hardships she went through when she approached her employer to say she was no longer able, due to her pregnancy, to do the work required of her as a welder. Her only choice was to go home. That’s when she realized the difficulty in getting her Employment Insurance and that, even when she did get it, it was for a short period of time.
I would like your opinion: In a case like that, when an employer feels the employee doesn’t have anything to offer, would it not be a solution that instead of the employee having to quit, that the employer says, “You can no longer do the work that I need,” and they would lay them off? In this case, if she is walking away, she has no guarantee of a job when she comes back. If the employer would grant her a layoff, it would give her the opportunity, instead of taking sick leave, to be on EI for a period of time. It would also give her the opportunity to see if she can find work to supplement the hours in another type of job that would not be a risk to her pregnancy. Then, following her maternity leave, once the child is a year old, she would have to look for a new job at the end. Either way, she still has to look for a new job at the end. I don’t know if that’s possible or if that’s a little far-fetched.
Ms. Pepper: It’s interesting, because we pushed years ago for women in non-traditional trades. We are pleased they are there. We hope to keep them there. Maybe there are allied trades, or maybe more training, so while they are on maternity leave they could take additional training. When they go back to their welder job, as an example, they might have upgraded proficiencies so the employer would look kindly on that kind of work-related experience while they cannot do their non-traditional trade.
Senator Poirier: Was that accepted?
Ms. Pepper: I have no idea. I’m just hoping that could be an example of a solution, if this is the case.
Obviously, it’s quite a difficult situation if it’s workplace environmental safety.
Senator Poirier: Okay. Can you share with us the typical types of work of the people who are affected during pregnancy and would have to leave? Do you have an idea of the list of different types of jobs that are more apt to have to stop working during pregnancy?
Ms. Pepper: Ones that have heavy lifting. My daughter is an example. When she was pregnant, they gave her other assignments that didn’t require her to lift heavy boxes as often. They modified her job situation.
Many other jobs have requirements that are not necessarily environmental dangers but require them to do physically difficult jobs that may require changes. When I was pregnant, the baby was pressing on my sciatic nerves. That was a difficult situation.
Sorry, I’m not supposed to talk other than from policy of the National Council of Women of Canada. Since you asked me for examples I’m thinking of various things that could impinge upon a woman’s continuing her pregnancy through to completion at work, if that is what she can and wishes to do.
Senator Poirier: Okay. Thank you.
Ms. Pepper: Does that answer the question?
Senator Poirier: We have heard a couple of different things. I know Mr. Lafrance mentioned one I had not thought of, and that is someone working in a daycare where there is an outbreak of some virus or disease. I guess you would also see that for people who work in a hospital or a school, for the teachers, teachers aides or even a bus driver.
The more I think about it, I wonder if it’s even possible to make a list. Any job environment could be, at one point or another, a risk during a pregnancy depending on the situation.
Ms. Pepper: Yes, and another aspect is travel. As we know, people are often required to travel either short or long distances in their jobs. This could have additional dangers on many levels.
As we know, when we fly we often come back with flu symptoms. Illnesses and accidents, of course, are endemic in a lot of travel. Yet for Far North residents, there are a lot of instances when they need to travel in emergencies to get medical help that is not available in rural situations, of course, when that’s the case.
Senator Ravalia: My question is for Mr. Lafrance. Would you be able to walk me through the process of application for a preventive withdrawal and instances where preventive withdrawal may be denied? You talked about an appeals process. If someone applies and is denied, how does the appeals process work?
Mr. Lafrance: I’m going to answer in French, if you don’t mind. The process is relatively straightforward and, for the most part, takes place outside the CNESST.
Under the legislation, the pregnant worker must consult her physician, who, after speaking with her, determines whether her working conditions pose a risk to her pregnancy or the unborn child. If so, the physician submits an application to the public health authority. Quebec’s CLSCs, the local community health centres located across the province, are home to doctors who specialize in the field, as well as nurses and occupational hygienists.
Obviously, when the workplace is known, a site visit is not necessary, but when the workplace is not known, the occupational hygienist, nurse or doctor can visit the workplace. Further to the visit, the specialist identifies the working conditions that pose a risk. In that connection, Quebec’s health ministry has released several studies on working conditions that are physically dangerous, such as measles and influenza. Using those guidelines, the physician identifies and assesses the worker’s real working conditions and list the risks they pose. That report goes to the attending physician, who decides whether or not to issue a preventive withdrawal certificate. If the two physicians agree, an application is submitted. In theory, the CNESST supports the preventive withdrawal if both physicians agree and provided, of course, that the worker meets the requirements.
Workers in federally regulated sectors are not entitled to preventive withdrawal. Government of Canada, bank and interprovincial transportation employees do not qualify for the regime.
The CNESST makes a decision, which the employer and worker alike have the right to appeal before the Administrative Labour Tribunal. As I mentioned, three years ago, 33,000 applications resulted in just 250 appeals. Very few decisions made under the regime make their way to the tribunal, and, in most cases, denied applications involve workers in a federally regulated sector. In the case of big companies, the jurisdiction is often clear, but for smaller transportation companies, it may not be so clear, and that’s often the reason why an application is denied.
Does that answer your question, senator?
Senator Ravalia: Thank you. I think that might be helpful for us if we’re looking at transposing this to a national directive. It could save us a lot of trouble in terms of what is already a functional system. Thank you.
Senator Dasko: Thank you so much for your presentations today. I’m particularly interested in federal-provincial aspects. My question would be to both of you.
You have both argued against this initiative taking place under the EI program. What federal role would you see, if any, in this area? Is it a program? Is it objectives? Is it standards? Is it nothing? Should it all be provincially initiated and carried out?
I’d like to hear from both of you as to how you see what the ideal program would be. Is there a federal role and, if so, what would it be?
Ms. Pepper: We have done a lot of federal-provincial resolutions. A number of them concern trying to standardize across the provinces various medical aspects of support — not just this, but otherwise. Unless there is continuity across the provinces, it’s a situation where many of the people could object and move provinces and try to find their support where they can and move to a province where that is the case.
That, of course, is very disruptive to families. The sooner we can standardize a number of medically related and provincially organized supports across the provinces and territories, it would be very helpful.
It does cost money. You cannot just say it will not cost any more, federally. It must.
Is that part of what you wanted to hear?
Senator Dasko: You are talking about setting a standard, then.
Ms. Pepper: Yes. I have dealt with that in midwifery in the resolution I brought to the floor. If you look at our resolutions, which I have referred to in my presentation, there are many that need to be standardized across the country for medical supports. Most of the medical situations are provincial, and yet a number of them constantly relate federally.
Senator Dasko: When the fed set a standard, there has to be money associated with it, right?
Ms. Pepper: I haven’t gone into a lot of detail. However, for example, when we did the midwifery, some provinces didn’t have midwifery standards so that the midwives could go into hospitals, and be supported with the doctors and the doctors didn’t agree. There were lots of differences in that regard.
A colleague of mine is head of midwifery at Ryerson. Trying to standardize across provinces was an amazing problem. It would incur extra funding in other provinces that don’t have the same standards, supports or whatever across the country.
Senator Dasko: If you try to set standards, provinces could say, “This sounds good. Goodbye. Thank you.”
Ms. Pepper: You have probably dealt with this in many other situations. I’m just focusing on mine. Is this a trick question?
Senator Dasko: No, it’s not a trick question. I’m looking at ways this would work in a practical sense, given different kinds of programs.
But Mr. Lafrance, what are your thoughts about a federal role, if any? All of the above or none of the above?
Mr. Lafrance: The bill provides for holding a consultation. For us, the federal government’s role is to create favourable circumstances, to say that, in the next few years, we must sit down together, reflect on the issue and try to find solutions. Clearly, we are in an area of shared jurisdiction. We are talking about occupational health and safety, and working conditions. Therefore, the reason why the system may not apply to federally regulated businesses in Quebec is that the Supreme Court of Canada said, in a decision rendered a very long time ago, in a case between the government and Bell Canada, that federal jurisdiction businesses are not covered by provincial laws of this nature. The federal government’s role is therefore to engage the provinces and territories with this important issue.
The provinces may say that they are not interested. However, it is important to understand that all the provinces in Canada have health and safety prevention plans. The federal government also has rules on this matter, which is governed by the Canada Labour Code. So the federal government, on its own initiative, can decide to adopt a system that will apply to female workers under federal jurisdiction, and therefore to the government. Banks, transportation, telecommunications, all those still represent — at least for Quebec — about 10 per cent of female employees. It must be about the same across Canada. Provincial governments, all of which have occupational health and safety legislation, will then have to decide whether or not they want to have that type of program.
I don’t think the federal government can go much further than that, but just talking about it.... If a province says it is not interested, that it is not interested in the fate of its female employees, that they have to solve their own problems and assume the dangers or financial costs that this causes, the province will have to live with that. The federal government cannot force the provinces.
I am convinced that holding such a consultation would help further this cause, but I cannot say more.
Senator Dasko: Thank you. That’s really helpful.
Senator Munson: All the good questions have been asked.
Ms. Pepper, what do you think of the Quebec program?
Ms. Pepper: I was impressed they had a support program, and better than the federal and better than Ontario, years ago. We have been pushing for various supports since the early 1980s.
He’s correct in saying the consultations should be across the country. It will be a movement in slowly accepting national standards. Provinces do push back. We can somehow encourage with the carrot rather than the stick to help equalize the provincial supports across the country.
Senator Munson: I like that term, “movement.” It’s what you have been talking about, Mr. Lafrance, and thank you for that. It seems the Quebec model is one that works.
You have talked, Mr. Lafrance, in various ways, about the impact of the safe maternity experience program in Quebec. I’m curious about the impact on pregnant and nursing workers, and also on businesses. Do you have any data? Maybe you spoke about it and I missed it. For businesses retaining these workers, is it good for business?
Mr. Lafrance: I’m not sure there are any figures on that. I think it is good for companies to retain their employees, to keep their workers healthy, but I am not sure that studies have been done on the long-term benefit for companies. I don’t know, I don’t have an answer for you.
Senator Munson: It could perhaps be a part of the consultation to have that kind of data. If there is an economic benefit, then it’s good for everybody. Thank you.
Senator Omidvar: I have very little time. Let me ask a very short question to both of you. I have heard about two proposed improvements to the bill — amendments. One is in the title of the bill. The other is the insertion of the inclusion of women who are nursing as well as pregnant women.
Are there other amendments to this bill, framed as it is before us? It’s a bill that will mandate consultations and reporting. Are there any other considerations you’d like us to keep in mind as we proceed on this work?
Mr. Lafrance: On our side, those were the two things we were seeing. We have not made any proposals, but we don’t think the title is consistent with the content, and we want to add breastfeeding.
For the rest, we would point out that we do not want amendments that would bring back the clauses that were withdrawn by the House of Commons, and that meant that the program was managed by the employment insurance program, with benefits paid by employment insurance, because it is all very different.
I did not spend much time on this, but it is important to understand that this would have a significant impact on Quebec, because it is clear that, once there is a federal program managed by employment insurance, it would jeopardize our program.
Employers would ask why they have to pay twice. They pay at the federal level and in Quebec. It was very important to us. We do not want to see those two clauses in the bill again.
Ms. Pepper: I would like to make a comment. We are almost out of time. Consider, as I mentioned in my presentation, a lot of exceptions. Obviously you can’t include everything. As long as they are all considered and perhaps fall under different aspects of the provision, and if it is general enough, it can accommodate some of these exceptional situations which may arise that we haven’t considered or mentioned yet.
I think of the support for women who are pregnant and those who are not, obviously, in the other situations. It needs to be a complete circle of support so that our next generation is not told it is the women who have to bear all the responsibility of bringing up the next generation. It must be a total responsibility for all Canadians. As we know, we need a lot more immigration to support our generations coming after us. Too many of us are living too long.
The Chair: Thank you.
Senator Omidvar: This is a question for Mr. Lafrance. I have been looking at the program in Quebec. It is remarkable how articulated and mature it is. I wonder if you have the evidence to answer this question: Which occupations and which sectors are most heavily represented in the community that participates in this program, in terms of preventive withdrawal during pregnancy?
Mr. Lafrance: If you go to the Commission des normes, de l’équité, de la santé et de la sécurité du travail website, you will find statistics such as Pour une maternité sans danger: Statistiques de 2011 à 2014. They are probably up to 2012-2015 now. You have 50 pages of tables that cover all sorts of topics. The job categories with the most preventive withdrawals are nurses and teachers, jobs that could be described as “female” because women are in those positions more often than men.
I’ll try to quickly go over that. Women’s jobs have been important. There has been a lot of research on women’s work. I would like to give you an example of research that was conducted after the legislation was passed in Quebec. We compared positions, such as the work of a warehouse handler — a man’s job — and the work of a seamstress, a female sewing machine operator. We wanted to see who lifted the most weight and other criteria, and we realized that the seamstress lifted more weight in one day. Even the researchers did not expect that result. It’s not the same weight. Lifting half a kilo 10,000 times a day is not the same as lifting boxes weighing 20 kilos, but less often. That has an impact; with those sorts of figures, we can document the fact that women’s work is as dangerous as men’s.
Certainly, there are statistics, and I invite you to consult them. The committee can consult the document, which is available on the Internet. You have all the figures on the most dangerous jobs, what the costs are, the number of days off work, and so on. It’s a gold mine.
The Chair: Mr. Lafrance, thank you for your answer and for the reference, which we will be sharing with the members of the committee.
Thank you both for your testimony. It has been important for the work we have to do on this bill.
Welcome to the second half of this meeting. We have new witnesses.
From the Canadian Human Rights Commission, we are pleased to welcome Monette Maillet, Deputy Executive Director and Senior General Counsel. We also have Valerie Phillips, Director and General Counsel. From Employment and Social Development Canada, we have: Brenda Baxter, Director General, Workplace Directorate, Labour Program; Andrew Brown, Director General, Employment Insurance Policy; and Rutha Astravas, Director, Special Benefits, Employment Insurance Policy.
Welcome. We will begin with the Canadian Human Rights Commission followed by Employment and Social Development Canada. Each organization has seven minutes for opening remarks. I understand you will be sharing those seven minutes.
Monette Maillet, Deputy Executive Director and Senior General Counsel, Canadian Human Rights Commission: Good morning, honourable senators. Thank you for inviting the Canadian Human Rights Commission to contribute to your study of Bill C-243. We have three points we would like to raise in relation to this study. First, we fully support this bill. We believe the study it proposes could contribute to better understanding and eliminating equality barriers for women in the workplace.
Second, this study should employ a human rights-based approach; and, third, the study should ensure any recommendations take into account the employer’s human rights obligations to accommodate an employee’s needs related to pregnancy.
The Canadian Human Rights Commission is an independent organization that reports to Parliament. It acts as a human rights watchdog in Canada. The Commission receives complaints of discrimination and attempts to guide complainants and respondents to a resolution of their disputes. When the parties cannot reach an agreement, or when the Commission considers that the complaint needs to be examined further, it may refer the complaint to the Canadian Human Rights Tribunal.
Today, our remarks are based on extensive consultations with stakeholders and on the complaints of discrimination that we have received over the years. You may have seen our pregnancy policy or our guide for caregivers. The commission drafted them in part as a result of complaints we had received from women who were denied accommodation when they were pregnant or had to care for their children.
This leads me to my first point. We fully support this bill because it is another way to promote the equal participation of women in the workplace. If the bill is passed, we believe that consultations on the creation of a national maternity assistance program would help identify the barriers for women. They would also help to identify the elements of a national strategy.
While women’s labour force participation is still increasing, statistics remain lower for skilled trades, science and the transportation sector. We believe that these industries are losing a large pool of talent. They are hindering their growth and denying women equal opportunities to participate in the labour force. Studies have shown that, when women are allowed to take their place in the workplace, it promotes healthier and more competitive organizations. There are also real benefits for the economy and society as a whole.
Although we support the bill, and recognizing that a national maternity assistance program can help remove some barriers for women, we know that it will not eliminate all of them. Obstacles created by gender norms and stereotypes will certainly remain. That is why a human rights approach should be adopted.
Now for my second point. We recommend a human rights-based approach should be applied to all facets of the study, a human rights-based approach means all forms of discrimination must be prohibited, prevented and eliminated. It means the consultations should involve and hear directly from women whose rights are affected. It also means that priority should be given to women in the most marginalized or vulnerable situations who face multiple barriers to realizing their rights. That is often referred to as intersectionality.
The list of issues outlined in the bill that will be assessed is a good start. Applying a human rights lens throughout the process will help ensure the dignity of the individual is at the centre of any policies and programs that may result.
This brings me to my third point. The study should ensure any recommendations take into account the employer’s human rights obligations to accommodate an employee’s needs related to pregnancy. The Canadian Human Rights Act requires that employers accommodate employees to the point of undue hardship.
In a decision of the Canadian Human Rights Tribunal, known as the Hoyt case, where a pregnant woman was not accommodated in a male-dominated workplace, the tribunal affirmed that pregnancy must be accommodated and employers must make all efforts to assist employees short of undue hardship.
We have worked with many employers who are well aware of the duty to accommodate and of the concept of undue hardship. Most employers understand they must take an in-depth look at each individual’s situation before they dismiss the possibility of accommodation. When there is a situation where safety makes it impossible to accommodate an employee who is pregnant, a maternity assistance program would clearly provide necessary support.
The risk, however, is some employers may see a future program as an opportunity, a justification or loophole to avoid accommodating an employee. Again, that is why we recommend the study ensure any recommendations take into account the employer’s human rights obligations to accommodate and support an employee’s needs related to pregnancy.
In conclusion, the commission is very encouraged and supportive of this bill. Concrete action in this area would further the purpose of the Canadian human rights act and human rights in Canada. It would also contribute to advancing Canada’s implementation of its international human rights obligations.
The findings of the study have the potential to promote greater equality for women in the workplace across Canada. Barriers could be eliminated and more women may be encouraged to explore careers they have historically been excluded from. This would benefit Canada both economically and socially, and it would bolster our reputation as a world leader in women’s rights and human rights. I look forward to questions.
The Chair: Thank you.
I will now give the floor to the officials from Employment and Social Development Canada.
Brenda Baxter, Director General, Workplace Directorate, Labour Program, Employment and Social Development Canada: I am pleased to appear before the committee in relation to Bill C-243,the National Maternity Assistance Program Strategy Act. Some pregnant workers face workplace conditions that may be harmful to their health and safety or harmful to their fetus. This bill focuses on providing greater support to pregnant workers when there are health and safety concerns that stem from the workplace.
In particular, this bill will mandate the Government of Canada to consult provinces, territories and relevant stakeholders on the prospect of a national maternity assistance program to support women who are unable to work due to pregnancy and cannot be reassigned by their employer.
The Canada Labour Code sets out and regulates the minimum occupational health and safety and labour standards protections within federal jurisdiction workplaces and includes a number of protections for pregnant or nursing workers. Federal jurisdiction businesses include banking, telecommunications and broadcasting, as well as interprovincial and international transportation. Depending on which section of the code you are referring to, it represents between 6 and 9 per cent of Canadian workplaces. Provinces and territories regulate all other sectors. In most cases they provide similar protected leaves for their pregnant and nursing women.
At any time, if any employee, including pregnant or nursing woman, believes there is an imminent or serious danger in the workplace, they may refuse to work and have the circumstances assessed by the employer and the workplace health and safety committee to eliminate, mitigate or protect against that hazard.
The example provided earlier around a measles outbreak might fall into this category.
In addition, the code allows a pregnant or nursing woman who believes her work poses a risk to herself or her fetus to stop work and seek medical advice. On receiving this medical advice, she may ask her employer to modify her work or to find another assignment that does not pose this risk. This may include, as was mentioned in the earlier discussion, limiting flying across the country or lifting.
Once this request has been made by the woman to the employer, the woman may take leave with pay until the employer is able to accommodate her in another position or the employer confirms they are unable to do so.
If modified work or a new assignment is not provided, the woman may take a unpaid leave of absence with job protection for the duration of the risk or of the pregnancy.
The Canada Labour Code also provides ongoing job protection once the child is born. The woman may take up to 17 weeks of maternity leave and up to 63 weeks of parental leave, which aligns with the Employment Insurance benefits.
Recently, Budget Implementation Act 2018, No. 2, proposes amendments to the Canada Labour Code, including to remove the six-month eligibility requirement to access maternity and parental leaves, to further increase job protections for these workers. It also expands the definition of who is qualified to assess the risk to the woman from a medical practitioner to a health practitioner.
I will now turn it over to my colleague Andrew Brown who will discuss the benefits under the Employment Insurance program.
Andrew Brown, Director General, Employment Insurance Policy, Employment and Social Development Canada: Thank you, Brenda.
I am the director general responsible for the Employment Insurance policy at Employment and Social Development Canada. I am pleased to appear this morning before the committee.
It is helpful to know about EI maternity benefits. They are payable to eligible claimants for up to 15 weeks and complement other EI benefits such as parental benefits. In 2016-17, approximately 170,000 claimants were paid EI maternity benefits amounting to approximately $1 billion.
When Bill C-243 was first introduced in the House of Commons in early 2016, the bill proposed changes to the EI program to support pregnant workers and allow them to access EI maternity benefits earlier, up to 15 weeks before a pregnant worker’s expected due date, which is earlier than the eight weeks. Prior to more recent changes, a pregnant worker was able to access maternity benefits eight weeks prior to the expected date of birth.
There are differences between preventive withdrawal and maternity provisions. EI maternity benefits are related to child bearing and are intended to protect the mother from an earnings loss caused by her physical or emotional inability to work or to seek work in the weeks surrounding birth while preventive withdrawal refers to the right of pregnant or nursing employees to be temporarily reassigned or take leave if their employment poses a risk to their health or the health of the fetus or nursing child.
In the fall of 2016, we held consultations with the public and stakeholders on more flexible EI maternity and parental, and more inclusive care giving benefits. Inspired by the bill, these consultations included questions related to preventive withdrawal. With respect to maternity benefits and leave, one of the things we heard was access to early maternity leave is important to pregnant workers facing workplace health and safety issues.
Results of those consultations and pre-budget submissions from trade, labour and women’s organizations led to changes that were announced in Budget 2017 and implemented on December 3, 2017. These changes included allowing pregnant women to claim EI maternity benefits earlier, up to 12 weeks before their due date — up from the previous eight weeks — to provide workers with flexibility to start their leave, taking into account their own circumstances. This change was welcomed by the sponsoring member of Parliament and stakeholders. Corresponding changes were also made to the Canada Labour Code to ensure workers in federally regulated workplaces have access to job protection while receiving EI maternity benefits.
Subsequently, this bill was amended through a House of Commons committee to remove the proposed amendments to the Employment Insurance Act which focused on earlier access to maternity benefits to address preventive withdrawal.
Between December 3, 2017 and August of this year, preliminary data shows there were a total of 5,600 established maternity claims where maternity benefits were received between nine and 12 weeks before the due date. These represent claims where women have taken advantage of the new measure.
That concludes our opening remarks on the existing Canada Labour Code and Employment Insurance provisions, including the recent changes to better support pregnant workers.
The Chair: Thank you very much. We will now begin the questions with our deputy chair, Senator Seidman.
Senator Seidman: Thank you very much for your presentations. Right off the top I would like to say, Mr. Brown, thank you very much for putting forward that distinction clearly between preventative withdrawal and maternity provisions. It is a clear distinction, as we have heard in our previous panel, and an important one.
On that note, I might like to ask about this emphasis on human rights. I’d like it put the dichotomy out there.
If I understand correctly, Ms. Maillet, in what you presented, the human rights approach puts the onus on the individual who then has to go to a human rights tribunal.
Alternatively, under the program Mr. Brown referred to, they’d have to stop work and seek medical advice. It puts the employee in a potential conflict situation with their employer. If you are dealing with a pregnant woman, it’s creating an enormous amount of stress. Now she has to take on the challenge herself, personally, individually. The Quebec model, which is a public health right and approach under an occupational health and safety regime, which is a collective right, doesn’t set up a confrontational position for an employee with their employer.
I’d like to ask you what your impression is. How would you evaluate this dichotomy? The bottom line is: Why do federal government employees across the country in the various provinces not have access to that collective right? Thank you.
Ms. Maillet: Thank you for your question. The health and safety of employees at work, particularly in the case of pregnant women, needs to be balanced with the right to stay in the workplace. When we take into account the Canadian Human Rights Act, it puts an obligation on employers to ensure — and particularly in some of the complaints we have seen, where it’s a male-dominated industry, some of the employers perhaps are not that friendly to some of the women in the workplace. There is harassment and other issues going on. They don’t do what they need to do to ensure they accommodate a pregnant employee.
I agree with you. To have to file a human rights complaint to ensure your rights are adhered to isn’t the best way to go, but it is a protection. When women are discriminated against in the workplace by not being accommodated or for any other reason, they have a place to go where their complaint will be heard.
We try to mediate. Most complaints are settled. It is a necessary mechanism that women use in order to ensure their rights are addressed.
Also, employers know the Canadian Human Rights Commission is there and that people do avail themselves of their right to file a complaint often then do take steps to ensure they are accommodating women. I don’t know of any employer who enjoys having a complaint filed against them. We hope that also encourages employers to do the right thing.
Senator Seidman: I’d like to perhaps hear from Mr. Brown about this, given that you represent Employment and Social Development Canada. I don’t know if you have something to say about federal government employees and women’s collective rights, especially, to preventive withdrawal.
Mr. Brown: I would defer to my colleague Brenda in terms of the labour perspective.
Ms. Baxter: Thank you. As mentioned, there are 13 jurisdictions with respect to occupational health and safety in Canada. The federal jurisdiction includes banking, interprovincial, international transportation, as well as federal public servants.
When there is a danger or request to be reassigned if there is a potential danger to a pregnant or nursing woman, that exists under Part II of the Canada Labour Code. All those employees have the right to that. Should the employer not comply, they have the ability to complain to the labour program. We would investigate that complaint. We would have a finding. If either of the parties disagree with that finding, they can appeal the decision to the Occupational Health and Safety Tribunal.
One note, though: With respect to occupational injuries, if you are a federal jurisdiction employee, there is no workers’ compensation at the federal level. Workers compensation is administered at the provincial level. For example, if you are an employee working in a federal jurisdiction in British Columbia, and you are injured and eligible for workers’ compensation, you would get that through the provincial compensation system. The employers would pay into that provincial compensation system.
Senator Seidman: Thank you.
The Chair: I would like to ask my colleagues and witnesses to be a little bit conscious of time. We need to finish at 12:30. We have a lot of senators with very good questions, I am sure.
Senator Mégie: I don’t know who will be able to answer my question. Witnesses have told us that the title of the bill does not match the content. We want to talk about preventive withdrawal in the content, while the title talks about setting up a national maternity assistance program. What should we focus on in our consultations? Would it be to implement a national maternity assistance program or should we limit ourselves to preventive withdrawal? Do you have any suggestions?
Mr. Brown: In my opinion, I think it is important to really think about the issues and to ask ourselves what the needs of those workers are in this situation, not simply or strictly think about a program as such in Quebec. It is a possibility, but it is possible that there may be other measures that could help workers in that situation. So part of that is in our employment insurance system, but also in labour codes across the country.
Senator Mégie: Earlier, you said that consultations had already been held to make pre-budget proposals in 2017. I have seen professional associations, unions and organizations. Do you know whether they have interviewed people in the skilled trades or the construction industry?
Rutha Astravas, Director, Special Benefits, Employment Insurance Policy, Employment and Social Development Canada: Senator, to answer your question, consultations were held in two ways.
First, we conducted online consultations that were open across the country. We heard mainly from people and organizations outside Quebec, because Quebec has its own QPIP system. We also had a discussion, a minister’s round table with a whole host of organizations from different sectors. We also received written submissions from organizations and unions involved in construction, national unions that include organizations representing the rights of women, families, workers, and a few organizations that have supported this bill. When the website was launched, a number of organizations truly supported Bill C-243. We saw a variety of findings, both in response to this bill and in the consultations we held at about the same time.
Senator Ravalia: Thank you. My first question is for Ms. Phillips. We’ve had a discussion about the potential infringement of equality barriers from a human rights perspective. Would you be able to highlight some examples for me, particularly with respect to pregnant women or nursing mothers, where these rights have been infringed, the average duration it takes to arrive at a successful conclusion of your hearings and whether vulnerable populations are overrepresented in the groups you review in this instance?
Valerie Phillips, Director and General Counsel, Canadian Human Rights Commission: Thank you for your question. I believe the first part of your question was about barriers pregnant women face in the workforce.
The first is not applying for jobs to begin with because they feel they will not be able to have a family or live the life they want to have. That’s the purpose of the Canadian Human Rights Act and the provincial and territory codes — to try to break down those barriers. The commission also administers part of the Employment Equity Act and promotes within federal employers for the representation of designated groups. Women are included in those, as are visible minorities, persons with disabilities and Indigenous people.
In her speech, Ms. Maillet talked about intersectionality. In the course of your discussions I believe you have primarily spoken about women in hazardous professions. There are also women with disabilities, who are visible minorities and who come from vulnerable circumstances. Those add additional barriers.
What does that look like? Having an accent can get you screened out of an interview. Getting pregnant can get you fired. We have heard about that. Not working in an environment where there are alternate jobs you can perform while you are pregnant can mean a loss of income, which is what you have talked about primarily.
Does that answer your question?
Senator Ravalia: I was coming from the perspective of us further developing and refining some of this legislation. Whether there are specific areas you would like us to add directly into the current wording of this document to ensure those human rights are not infringed upon.
Ms. Phillips: We’re suggesting the study itself take a human rights approach. If that wording could be incorporated into the bill, that would be helpful. The commission would be happy to help during the consultation period if this bill passes. We have provided a framework, for example, to the Missing and Murdered Indigenous Women Inquiry around what a human rights-based approach would look like.
Senator Ravalia: With your permission, Madam Chair, perhaps we could ask you maybe draft some of that type of documentation for us to review after this meeting. Do I have a little bit of time?
The Chair: The law clerk will be able to assist you in drafting something for you to pursue.
Senator Ravalia: This is a question for Mr. Brown. We have now heard a lot about the issue of Employment Insurance versus the Quebec model. The Quebec model remunerates up to 90 per cent. Can you give me an idea of how much a pregnant woman who accesses maternity leave will get with respect to a percentage of her income?
Mr. Brown: Thank you for the question. It is also important to recognize in the province of Quebec there is the Safe Maternity Experience program that we have been hearing about this morning. It also has its own Quebec Parental Insurance Plan that provides maternity, parental, paternity and adoption benefits in the Province of Quebec. Those two are distinct. There are rules when a person must end their Safe Maternity Experience claim and then move on to the Quebec parental insurance plan.
For the purpose of EI, maternity and parental benefits, they are more akin to the Quebec Parental Insurance Plan and not Safe Maternity Experience.
For the EI program, the replacement rate is 55 per cent of a worker’s average weekly insurable earnings. Something that’s different between the Quebec program and the federal program of Employment Insurance is that it’s a 55 per cent replacement rate up until something called the maximum insurable earnings, which is currently about $52,000. When people pay EI premiums, they only pay them up to their earnings of $52,000, roughly. That’s the only portion of their income that’s insured. It’s 55 per cent up to that cap.
Senator Ravalia: Thank you.
Senator Omidvar: I welcome Senator Ravalia’s suggestion to our two colleagues from the Canadian Human Rights Commission. In order to embed human rights concepts into this bill, we need to have it codified in the language. I too would welcome that. I ran out of time for my question last time. I want to put it on the record.
Senator Munson: You can take my time.
Senator Omidvar: I’m going to ask you a question that is not really related to your presentation but to statements we have heard from witnesses in the panel before and last night.
We heard from the Quebec experience that, in fact, the greatest number of pregnant women asking for preventive withdrawal support comes from occupations that are traditionally female dominated, such as nurses and teachers. The preamble of this bill, however, focuses more on nontraditional occupations.
Would you recommend a balance in the language of the preamble to make sure we do not apply our own biases? Clearly I was educated by our colleague from Quebec earlier that, in fact, danger to pregnant women comes from usual and unusual spaces and places.
Ms. Maillet: In listening to the prior witnesses, it became clear we are not only taking about male-dominated workplaces. It’s clear that traditional women’s work has its own barriers to employment for pregnant women.
When it is a male-dominated workplace, it can add an additional barrier.
Senator Omidvar: Would you be able to take a look at the preamble and give us your proposals?
Ms. Maillet: Yes, we could do that.
Senator Poirier: I have a couple of questions for clarification for Mr. Brown.
In the presentation, you talked about the changes that came in place for the eight weeks up to the 12 weeks. Then you also talked about the eligibility for the claimants up to 15 weeks on the EI maternity benefit and the number of people who have taken it.
Again, from listening to the witnesses last night, some of the comments made suggested if you are in a situation where the employer is unable to offer you another type of work during your pregnancy to accommodate that you can no longer do your job due to medical reasons a doctor says are a risk to the child or yourself, that employee may have no option but to go on sick leave of EI.
They felt that was wrong because they didn’t feel being pregnant meant they were sick. They felt it was forcing them to go on medical leave. If they are on medical leave they can claim only the 55 per cent and are not allowed to work at something supplementary if they could get it.
Also, those 15 weeks does not cover the lapse of their pregnancy. There is a period of time where they have absolutely no income before they can begin their maternity leave after the child is born and from those weeks that fall in there. It’s causing a lot of hardship.
My question is: What is the employee’s role in here? If you are an employee and you can no longer do the job the employer is asking you to do, would it not be more beneficial, instead of having the employee quit, which is one of the options they have, or going on sick leave when they are not actually sick and they will be penalized because of the limit, if the employer cannot provide employment, wouldn’t it be better if the employer gave them a layoff? Either way, they are not guaranteed their job afterward.
That would give them a regular EI claim during pregnancy but would also give them the ability to go out and work during their EI claim at another job they are able to do to supplement so they are not going through all that hardship.
Once the child is born, or close to that 8 to 12 weeks, they would kick into the normal maternity benefits. Is that something that would be legal and acceptable in the EI program? Is that something the employer should be responsible for looking at?
Mr. Brown: A number of different pieces there. I can speak about the EI pieces, and may look to labour to help out if possible.
First off, would we want to see employers laying off workers in this situation — I don’t think that’s the situation we would want to see. I have heard of there being different kinds of ways that employees and employers have taken to approach particular situations.
If I can speak about EI for a moment, because I think it is important for the committee to understand the different elements of it. One, there is a sickness benefit, which you referred to. That is in relation to when somebody has an illness. It’s a simple one to access and it does require a doctor to say this person is unable to work at the moment for a medical reason. That’s all we require, no more than that, due to a medical reason.
With maternity, it’s essentially the worker telling us they are pregnant and expecting as of a certain date. We allow them to then access maternity benefits. It’s linked to the fact of child bearing, accessible from 12 weeks prior to the expected date up to 17 weeks after. Those 15 weeks should be taken around the expected date of birth.
One of the reasons it didn’t go all the way to 15 — and 12 was ultimately where it landed, 12 weeks prior — was with 15 weeks available, there is always uncertainty regarding when the child will actually arrive. If women were able to access benefits 15 weeks prior, use all of those 15 weeks up, and the child does not arrive on time, you would then have a situation in which no benefits would be payable. They might risk running out of their job protected leave while waiting for the child to arrive. That was the reason for the 12 weeks.
What follows is the parental benefits. Those are the benefits for care of the child and are only payable after a child has arrived or, in the case of an adoption, once the child has been placed in the home. Those are the benefits any parent may receive to provide care. I think sickness, maternity and parental all having a very separate and distinct purpose is important to recognize in terms of the flexibility that is there.
Senator Poirier: If a person becomes pregnant and is told early on in their pregnancy they cannot do the type of work they were doing before, and that the employer is not able to accommodate them in any way or in another type of job within their business for that employee, then there are not enough weeks there for them to cover it. There is going to be a lapse of time where they have zero income coming in. It’s a hardship on a family. Even more so if it’s a single mother. It’s that hardship. There seems to be a lapse there.
That’s what I’m trying to understand. Is there a lapse there? If there is, is there another solution within the EI program that could be looked at? That’s why I brought it up: If the employer can’t offer this person a job, is the best solution to say — even though it’s not that we would want, for them to be laid off — but is that the best solution? To try to give some guaranteed income until we have a strategy in place, like Quebec, across the country?
Mr. Brown: I can talk about one other piece in the program. Maternity cannot begin until at least within 12 weeks of the expected date of birth. About three months out. There is nothing prior to that period. During that period you talked about whether or not they can take on some additional work and further increase their income. That is possible. There were changes, in fact, brought about this year, announced in budget 2018 and which came into force in August. These are the provisions we call working while on claim. They previously applied only to other kinds of EI benefits. They always excluded maternity and sickness benefits in the past, with the rationale that the purpose of those benefits was to allow you to recover in one way or another, not create an incentive for you to take work. New flexibility was added by allowing workers to make use of those provisions while receiving either sickness or maternity benefits. This means, if someone picks up a part-time job during that period, they could supplement their income while retaining some of their EI.
Senator Poirier: The last three months.
Mr. Brown: Yes.
Senator Poirier: For the first six months there is nothing.
Mr. Brown: There is nothing in the first six months.
Senator Dasko: Very interesting. Lots of things to digest. Just going back to our previous witnesses — I think you were here to hear them. They have argued against the use of the EI program to deal with the issues raised around maternity. Then there was an amendment that had been made that had been withdrawn.
I’d like your point of view as to the ability of the EI system to either expand, be tweaked or changed further, taking into account what the previous witnesses said who argue against it. This may sound like a convoluted question.
Over the years EI has been able to change. For example, you have compassionate care leave as a way to deal with those particular circumstances. The program has been able to change in various ways to accommodate issues that society has identified. That’s kind of my question. I hope that doesn’t sound a little too convoluted. Also, when the inquiry should take place, what will your role be? Will you come to argue for an enhanced EI role? What do you think you might take on at that point?
Mr. Brown: I wouldn’t say that I would see us taking a particular position from the perspective of the EI program about whether this is something new that should be in it or not. I think I can still help with that question.
Senator Dasko: Good. Thank you.
Mr. Brown: The Employment Insurance program has made significant changes over the years. In fact, the whole area of what we call special benefits started with the creation of maternity and sickness benefits in 1971. It’s had a tremendous impact, in terms of maternity and then further expansion into parental benefits, in terms of keeping women active in the labour force. Partly, that’s about a lot of cultural changes as well. The changes as they have gone over the years to the maternity benefit have remained. Those 15 weeks for that specific purpose of allowing women a period of recovery around childbirth. The expansion has been largely in terms of parental benefits. It’s been done in different ways at different times, but over time they have gotten longer. The idea has been to give flexibility to families and recognize they are best placed to determine what their own needs are and to share those benefits as they see fit among parents. With the most recent changes the possibility of taking those benefits, not only over 12 months, but even over 18 months when combined with maternity. The changes made with maternity to go earlier — 12 weeks earlier up to 17 weeks after, depending on the choice — is also providing that flexibility. It’s really important there are certain kinds of flexibility we can provide in a big program like Employment Insurance and others that are going to be more difficult.
We don’t want to put individual Service Canada agents in a situation of trying to determine whether something makes sense. The flexibility is providing that to the men and women who are applying for EI benefits to determine when they would like them to start and to end.
There should be some thought about whether a program like Employment Insurance should be getting into the area of accommodations that an employer should make with respect to their employees. That would be something tricky and new for the EI program, compared to where we are today.
Senator Dasko: If I read into what you are saying, you are suggesting there will be some difficulty accommodating these particular needs in the program. It is an important question.
Mr. Brown: That is an important question.
Senator Dasko: It is vital, because EI is a huge program that Canadians rely on for so many different pieces. I have identified another issue here that could potentially fall under your jurisdiction.
Mr. Brown: That is where we have concerns. It is not with the broader issue but with what the elements are that would be brought within the Employment Insurance program. When we saw the original form of the bill, which included specific measures relating to labour standards — I am using my own terminology there — it said where a worker is not able to receive accommodation from their employee, the worker is then able to access benefits. This is the original language of the bill that is no longer there. Those are the things about which we would have challenges in terms of training our own officers to be able to assess whether a reasonable attempt was made to reassign the employee and so forth.
In the context of administering the program for roughly 170,000 women a year who are receiving maternity benefit, that gives an example of one of the challenges we would face.
Senator Dasko: That is really helpful. Thank you very much.
The Chair: Thank you very much, Mr. Brown. This is all the time we have. I feel there were more questions. We will continue with the study. Thank you for your contributions.
Honourable senators, I want to remind you, because there was talk on improving the bill. If you are considering amendments, I suggest you speak to the Office of the Law Clerk. As we know, they are experts in drafting amendments for the Senate. I encourage you to do that if you wish.
(The committee adjourned.)