Lavery Lawyers
  January 31, 2006 - Quebec

The New Quebec Parental Insurance Plan: What should you know?
  by France Legault

A 100% Quebec Parental Insurance Plan A new Quebec Parental Insurance Plan (QPIP) came into force on January 1, 2006. This plan provides for payment of benefits to all workers eligible for the plan who take a maternity leave, parental leave, paternity leave or adoption leave. This plan replaces the federal employment insurance plan. Beginning in 1996, Quebec informed Ottawa that it wanted to implement its own parental insurance plan. After several fruitless negotiations, Quebec decided to apply to the Quebec Court of Appeal to contest the constitutional validity of the benefits granted under the Employment Insurance Act (1996, c. 23). The Government of Quebec maintains that sections 22 and 23 of the Employment Insurance Act exceed the jurisdiction of the Parliament of Canada and encroach on the jurisdiction of the provinces. In the meantime, in May 2001, the Act respecting parental insurance (2001, Chapter 9) was adopted unanimously by the National Assembly. On January 27, 2004, the Quebec Court of Appeal rendered a judgment in the case and declared sections 22 and 23 of the Employment Insurance Act unconstitutional. Dissatisfied, Ottawa appealed this decision to the Supreme Court of Canada. However, the negotiations continued and on March 1, 2005, a final agreement on the Quebec Parental Insurance Plan is concluded between Quebec and Canada. On October 20, 2005, after a long judicial debate, the Supreme Court of Canada granted the appeal and declared constitutional the sections of the Employment Insurance Act concerning payment of benefits. Since the Canada-Quebec final agreement had already been made, the new plan comes into force on January 1, 2006, as anticipated. The plan is administered by the Minister of Employment and Social Solidarity. The premiums are collected by Revenu Quebec and a management board (the “Conseil de gestion”) assures the funding and administration of the parental insurance fund earmarked exclusively for payment of benefits. The conditions of eligibility To be eligible for the Quebec Parental Insurance Plan, it will be necessary to meet the following conditions, in particular: • be a resident of Quebec at the beginning of the benefit period; or • be a resident of Quebec on December 31 of the year preceding the beginning of the benefit period in the case of a self-employed worker; and, • be the parent of a child born or adopted after January 1, 2006; and, • have seen a reduction of at least 40% in his or her usual weekly income in the case of employment income or, in the case of a self-employed worker, have reduced the time spent on his/her business activities by at least 40%; and, • be a salaried worker or a self-employed worker whose insurable income is not less than $2,000, regardless of the number of hours worked. Type of benefits (Table 1): • Maternity: -- Basic Plan: 18 (Maximum number of benefit weeks); 70% (Percentage of average gross weekly income); --Special Plan: 15 (Maximum number of benefit weeks); 75% (Percentage of average gross weekly income); • Paternity: -- Basic Plan: 5 (Maximum number of benefit weeks); 70% (Percentage of average gross weekly income); -- Special Plan: 3 (Maximum number of benefit weeks); 75% (Percentage of average gross weekly income); • Parental (shareable between the two parents): --Basic Plan: 25 (Maximum number of benefit weeks); 55% (Percentage of average gross weekly income); --Special Plan: 28 (Maximum number of benefit weeks); 75% (Percentage of average gross weekly income); • Adoption (shareable between the two parents): -- Basic Plan: 12 and 25 (Maximum number of benefit weeks); 70% and 55% (Percentage of average gross weekly income); -- Special Plan: 28 (Maximum number of benefit weeks); 75%Percentage of average gross weekly income); Subjection to premiums: Effective January 1, 2006, the following persons will contribute to the parental insurance plan: • Employers (private and public); • Salaried workers; • Self-employed workers. According to Revenu Quebec, employers under federal jurisdiction must also participate in the plan. Major changes to the plan: The Quebec plan introduces several major changes to adapt it better to the reality of Quebec parents. In response to the trends in the work environment, the new plan proposes several changes: • Eligibility of self-employed workers for the plan; • No waiting period; • Increase in maximum insurable income from $39,000 to $57,000; • Minimum income of $2,000 to be eligible; • No minimum amount of working hours required. The benefits (see table above) (Table 1): The new Quebec plan proposes a more flexible approach in that it provides for the possibility of choosing between two plans. The basic plan allows lower compensation for a longer period of time and the special plan allows higher compensation for a shorter period of time. However, it is important to specify that only one plan option will be permitted per child. Both parents must therefore choose the same option. Maternity, paternity and adoption leaves and benefits: The Act respecting labour standards provides for the right to a leave, while the Act respecting parental insurance determines the right to benefits. A pregnant worker is entitled to a maternity leave for a maximum period of 18 weeks. The leave begins no earlier than the 16th week before the expected delivery date and ends no later than 18 weeks after the week of delivery. The worker may divide the maternity leave as she wishes before or after the expected delivery date. It is important to remember that the worker must provide the employer with at least three weeks’ written notice before the beginning of the leave, indicating the date the leave begins and the date of the return to work. This notice must be accompanied by a medical certificate attesting to the pregnancy and the expected delivery date. Contrary to the old plan, if the biological mother is on protective reassignment before the delivery, the benefits paid by the Commission de la santé et de la sécurité du travail will cease four weeks before the expected delivery date. The father is entitled to a paternity leave of no more than five consecutive weeks on the occasion of the birth of his child. The paternity leave begins no earlier than the week of the child’s birth and ends no later than 52 weeks after the birth week. The father and mother of a newborn and the person who adopts a child are entitled to a parental leave of no more than 52 consecutive weeks. The parental leave may begin no earlier than the week of the newborn’s birth or, in the case of an adoption, the week when the child comes into the care of the worker under an adoption procedure or the week when the worker leaves his or her job to go outside Quebec to take custody of the child. It ends no later than 70 weeks after the birth or, in the case of an adoption, 70 weeks after the child comes into the care of the worker. TABLE 2: • Natural Mother: -- Leave under the Act respecting Labour Standards: 70 weeks (18 of maternity leave + 52 of parental leave) -- Maximum Benefit Period (QPIP): 50 weeks (The parental benefits are shareable between the two parents); • Natural Father: -- Leave under the Act respecting Labour Standards: 57 weeks (5 of paternity leave + 52 of parental leave) -- Maximum Benefit Period (QPIP): 37 wweks (The parental benefits are shareable between the two parents); • Adoptive Parents(s): -- Leave under the Act respecting Labour Standards: 52 weeks (each parent); -- Maximum Benefit Period (QPIP): 37 weeks (The parental benefits are shareable between the two parents); The maternity, paternity and parental leaves must be taken continously and may not be split, subject to the exceptions stipulated in the Act respecting labour standards. Amendments to the Act respecting labour standards Paternity leave With the adoption of the Act respecting parental insurance, the new paternity leave plan comes into force. Under this plan a worker may be absent from work for no more than five consecutive weeks, without salary, on the occasion of the birth of his child. This new leave is in addition to the leave already provided under subsection 81.1 of the Act respecting labour standards, namely five days on the occasion of the birth of the worker’s child, with the first two days paid by the employer if the worker has 60 days of continuous service. Absences for family reasons The Act broadens the notion of family by allowing a worker with three months of continuous service to be absent from work, without salary, for a period of no more than 12 weeks in a 12-month period when his or her presence is required with the spouse of his or her father or mother due to a serious illness or a serious accident. Birth or adoption A worker who adopts his or her spouse’s child may now be absent from work for five days. The first two days are paid if the worker has 60 days of continuous service. Parental leave A person who adopts a minor or adult child is entitled to a parental leave without pay for no more than 52 consecutive weeks. This leave also applies to a worker who adopts his or her spouse’s child. Hospitalization of a child The amendments introduced henceforth allow an exception to the principle whereby maternity, paternity and parental leaves must be taken consecutively. Indeed, paragraphs 81.14.1 and 81.14.2 of the Act respecting labour standards provide that, upon request, the maternity, paternity or parental leave may be split into weeks if the child is hospitalized or if the worker may be absent pursuant to subsections 79.1 (absence owing to sickness or accident) or 79.8 (absence for family or parental reasons) of the Act respecting labour standards. When the child is hospitalized during the maternity, paternity or parental leave, this leave may be suspended, after agreement with the employer, to allow the worker’s return to work during the term of this hospitalization. In addition, a worker who, before the leave expires, sends the employer a notice accompanied by a medical certificate attesting that his or her child’s health condition or, in the case of a maternity leave, the worker’s health condition requires it, is entitled to an extension of the leave for the term indicated in the medical certificate. Conclusion These changes make the new Quebec Parental Insurance Plan more flexible. They are part of a social policy promoting the conciliation of work and family. This improvement probably means a cost increase for employers because it can be anticipated that more workers will take advantage of leaves and for longer periods. However, it is important to remember that, in accordance with the Supreme Court of Canada decision in Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, (2003) 2 S.C.R. 157, the substantive rights and obligations stipulated by the employment legislation are implicitly incorporated in every individual contract of employment or collective agreement.


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