Home Forums Answer for Changing Details of an Employee’s Maternity Leave

Post count: 2894

Like all other jurisdictions, Manitoba (ESC Sec. 60(2)) requires you to reinstate an employee after maternity leave at the same or equivalent position with at least equal salary and benefits. But Sec. 60(3) makes an exception for lay off, termination or failure to reinstate “for reasons unrelated to the leave.” Accordingly, I think you do have to extinguish rather than amend the current agreement.
Although you need to talk to a lawyer, I’d suggest you negotiate a new employment contract that starts with recitals stating the situation, “WHEREAS, employee wants to return….” and makes it clear that this is a new employment agreement and not a continuation of the prior one. Be ultra careful not to purport to have the employee waive her ESC reinstatement rights since that’s illegal. To totally eliminate the risk that the new deal may be interpreted as an attempt to evade your ESC reinstatement obligations, you might want to pay the pre-leave wage for at least part of the 6 months. That’s something you need to talk to your lawyer about.
I’m also going to ask our payroll expert, Alan McEwen to weigh in on this. Alan: What do u think?