If you are about to start maternity leave in Alberta, or you are already on leave, you may be wondering what rights you have when it comes time to return to work. A common concern is whether your employer must give you your old job back and what happens if they do not.
This article focuses on the return itself: reinstatement, termination, demotions, and your options if something goes wrong. If you are still planning your leave, our guide to maternity leave in Alberta covers eligibility, how long leave lasts, and EI benefits.
If you are unsure about your maternity or parental leave rights, you can also book a case evaluation with our team.
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Do You Have the Right to Your Job Back After Maternity Leave in Alberta?
Yes. Alberta’s Employment Standards Code requires your employer to reinstate you to the same position, or a comparable position with the same or greater earnings, when your maternity leave ends. The Alberta Human Rights Act separately prohibits your employer from treating you adversely because you took leave.
Your rights come from two separate but complementary Alberta laws.
1. Employment Standards Code
The Employment Standards Code sets out the minimum obligations employers owe to employees in Alberta, including the rules governing maternity leave.
The Code prohibits your employer from terminating your employment during your maternity leave, subject to a limited exception. An employer may terminate employment during leave only if they suspend or discontinue all or part of their business.
If that exception does not apply, termination during maternity leave in Alberta is not permitted.
Once your leave ends, your employer must reinstate you to the same position or to a comparable position with the same or greater earnings.
2. Alberta Human Rights Act
The Alberta Human Rights Act prohibits discrimination on protected grounds, including gender and family status. These protections extend to pregnancy and maternity leave.
This means an employer cannot terminate your employment or treat you adversely because you took maternity leave.
The Employment Standards Code sets minimum standards. The Human Rights Act addresses discriminatory conduct. Together, they protect employees returning from leave.
How Much Notice Do You Need to Give Before Returning From Maternity Leave?
In Alberta, you must give your employer at least four weeks’ written notice of the date you intend to return to work.
Put your return date in writing and keep a copy of what you send. If your employer later claims you did not give proper notice, you will want a paper trail.
It is also a good time to ask your employer, in writing, to confirm the position you are returning to. If the answer is vague, or your role has changed, that is worth knowing before your first day back rather than after.
Can Your Employer Terminate You When You Return?
The Employment Standards Code prohibits termination during maternity leave, but it does not expressly prohibit termination after you return. However, if your leave played any role in the decision, the termination may be discriminatory under the Alberta Human Rights Act.
If your employer terminates your employment on the day you return, you are still entitled to all the rights any other employee would have upon termination, including vacation pay and termination pay where applicable. You may also be entitled to severance pay at common law if you were terminated without cause.
That does not make the situation fair or lawful in every case.
Termination is not automatically discriminatory simply because it occurs after maternity leave. However, certain factors may suggest that your maternity leave played a role in the decision.
Signs your maternity leave may have influenced the decision:
- Your employer expressed frustration about your decision to take leave or about the operational impact of your absence.
- Your maternity leave replacement continues working after you are terminated.
- The timing of the termination closely follows your return and no prior concerns were raised.
These factors may indicate that the decision was influenced by your maternity leave, which could give rise to a human rights claim.
What Counts as a “Comparable Position” After Maternity Leave?
A comparable position is one that is objectively similar to your old role in status, responsibilities, and compensation. If a reasonable person would see the new role as a demotion, it is unlikely to be comparable.
The Employment Standards Code allows an employer to reinstate you to either your previous position or a comparable one. There is no simple formula for what qualifies. It depends on the specific facts of each case.
Indicators that a role may not be comparable include:
- Reduced responsibilities
- Lower status within the organization
- Reduced compensation
- Loss of supervisory authority
- Material changes to reporting structure
If the new position is clearly lesser than your previous role, your employer may have breached the Employment Standards Code.
For example, in one Alberta tribunal decision, an employer tried to reinstate an employee who was a store manager to a salesperson role. The tribunal found that this was not a comparable role and determined that the employer had breached the Code.
Can Your Employer Demote You or Cut Your Pay After Maternity Leave?
No. Offering you the same role at reduced pay, or a lesser role, when you return from maternity leave is a breach of the Employment Standards Code. A significant change may also amount to constructive dismissal.
If your employer offers you the same role but at reduced pay after your maternity leave, that is a clear violation of the Code.
In some cases, a significant change in role following maternity leave may amount to constructive dismissal. Constructive dismissal occurs when an employer makes a fundamental change to the terms of employment without the employee’s consent. You can read more about how constructive dismissal works in our Knowledge Centre.
Courts take these situations seriously. In a recent Canadian court decision, an employee returned from maternity leave to find her employer had prepared a letter agreement demoting her and reducing her salary. She refused to sign and resigned.
The court found she had been constructively dismissed. It awarded 12 months’ notice plus $40,000 in moral damages, finding the employer’s conduct was unduly insensitive given the employee’s vulnerable position returning from leave.
That case was decided in Ontario, but Alberta courts apply the same constructive dismissal principles.
If you are presented with new terms on your return, do not sign anything before getting advice.
What Are the Limits of Your Employer’s Reinstatement Obligation?
Your employer can reinstate you to a comparable role instead of your exact former position, and can still end your employment after you return, as long as they meet employment standards and do not discriminate.
Your employer’s obligation to reinstate you is not absolute. They may reinstate you to a comparable role rather than your exact former position. They may also choose to terminate your employment after you return, provided they comply with employment standards and do not act in a discriminatory manner.
However, if your employer changes your role, reduces your compensation, or terminates you shortly after your return, the circumstances should be carefully reviewed. Timing, prior communications, and the treatment of your maternity leave replacement can all be relevant.
What Can You Do If Your Employer Won’t Reinstate You?
Depending on the facts, you may be able to file an employment standards complaint, file a human rights complaint, or pursue a civil claim for constructive dismissal or wrongful dismissal. Each has its own deadline, so timing matters.
The right path depends on what happened and what outcome you want.
- Employment standards complaint. If your employer failed to reinstate you to the same or a comparable position, you may be able to file a complaint with Alberta Employment Standards. Complaints generally must be filed within six months after your employment ends.
- Human rights complaint. If your leave, pregnancy, or family status played a role in how you were treated, you may be able to file a complaint with the Alberta Human Rights Commission. Complaints generally must be made within one year of the incident.
- Civil claim. If you were demoted, had your pay cut, or were terminated without adequate notice, you may have a claim for constructive dismissal or wrongful dismissal. In Alberta, the general limitation period is two years.
These options can overlap, and choosing one can affect the others. Getting advice early helps you avoid missing a deadline or giving up a stronger remedy.
When Should You Speak With an Employment Lawyer?
If you are concerned about your return to work after maternity leave, it is prudent to seek advice before responding to your employer. This is particularly important if:
- Your employer refuses to reinstate you
- You are offered a role that appears to be a demotion
- Your compensation is reduced
- You are terminated upon or shortly after your return
Understanding your rights early can help you make informed decisions and protect your position.
FAQs About Returning to Work After Maternity Leave in Alberta
Is my job guaranteed after maternity leave in Alberta?
Your employer must reinstate you to the same position or a comparable position with the same or greater earnings. That guarantee is not absolute. Your employer can still end your employment after you return, as long as the decision complies with employment standards and is not connected to your leave.
Can I be laid off right after maternity leave?
It depends on the reason. A layoff that genuinely affects your position for business reasons may be permitted. A layoff that follows closely after your return, with no prior concerns raised, or while your leave replacement keeps working, should be reviewed carefully because it may be discriminatory.
Can my employer change my role after maternity leave?
Only to a comparable role. If your new role has less responsibility, lower status, lower pay, or loses supervisory authority, it is likely not comparable. A significant change may also amount to constructive dismissal.
What happens to my maternity leave replacement when I come back?
Your employer is expected to return you to your role or a comparable one. If you are terminated and your replacement keeps working in your position, that can be evidence your leave influenced the decision.
Am I entitled to severance if I’m fired after maternity leave?
If you are terminated without cause, you are entitled to termination pay under the Employment Standards Code and may be entitled to common law severance, which is often significantly more. Our severance calculator can give you a starting estimate.
Final Thoughts
Employees in Alberta who meet the eligibility requirements for maternity leave in Alberta have important protections when they return to work. Employers must reinstate employees to the same or a comparable role with the same or greater earnings, and they cannot discriminate against employees for taking maternity leave.
If you are facing uncertainty about returning to work after maternity leave, the employment lawyers at Cashion Legal can assist. We provide clear advice, practical strategies, and strong representation to help employees protect their rights.
Book a case evaluation to talk through your situation.
About the Author
Mike Cashion is a Calgary employment lawyer who represents small businesses and employees in a wide variety of employment matters. His primary focus is on complex cases involving allegations of just cause, shareholder disputes, and non-competition disputes. He also represents parties in severance negotiations, wrongful dismissal claims, constructive dismissal claims, workplace harassment, sexual harassment, discrimination, human rights complaints, workplace investigations, and employment contract review.