Still Not Good Enough: The Inequities Embedded in Canadian Parental Leave

Posted By Colleen Morawetz

15 years ago, the “maternity” leave system in Canada was overhauled to create a more flexible scheme. Both mothers and fathers had been able to access paid leave and allocate it between themselves since 1971, but this parental leave was only available for 10 weeks and was not utilized by the majority of Canadian fathers. The 2001 reforms expanded the availability of parental leave, distinct from the 15-17 weeks reserved for biological mothers’ pregnancy and maternity leave, from 10 to 35 weeks. This reform was heralded as a major step forward for gender equality, as it went further in recognizing the caregiving role played by both parents. Maternity leave had long been recognized as being important for both the mother and the child’s physical health; by expanding the availability of benefits, the new system allowed for the more recently recognized mental health benefits associated with parental-child bonding and work-life balance to be more available to fathers as well. Like all social programs, parental leave can be analyzed through the lens of health equity: has the new legislative scheme distributed these positive health effects fairly amongst different segments of society? Though it is difficult to isolate any one social policy’s effect on social determinants of health, a closer analysis of Canada’s parental leave laws in practice reveals worrying distributional issues.

Parental leave in Canada operates through several laws and informal mechanisms. Job security under federal and provincial labour codes formally guarantees that parents can return to their positions following leave; this security simultaneously encourages leave and strengthens labour force attachment for new mothers in particular. Income replacement, on the other hand, is administered by Employment Insurance (EI) in all provinces except for Quebec, which established the Quebec Parental Insurance Plan (QPIP) in 2006. The statutory incentives in labour codes and income replacement schemes encourage sectors of parents who would otherwise not take parental leave following the birth or adoption of a child: particularly low-income individuals who cannot afford to forgo any pay and high-income individuals whose salary and the desire for career advancement provide powerful incentives to keep working. Furthermore, fathers historically have been disincentivized from taking leave both due to the wage gap (making it more profitable for a woman in a heterosexual couple to forgo her full income) and, more importantly, as a result of gendered caregiving roles. Now, “parental” leave that can be shared by either parent (up to 35 weeks through EI, up to 37 weeks through the QPIP) and “paternity” leave that is reserved for biological fathers (up to 5 weeks under the QPIP) are meant to encourage fathers to take time off following the birth or adoption of a child.

Commonly cited rationales for parental leave include increasing mothers’ labour-force participation, encouraging parental work-life balance during the first year of a child’s life, and providing financial support to new parents. Additionally, several physical and mental health benefits are attached to properly administered leave programs. Throughout Canada, the combination of maternity and parental leave allows biological mothers to physically recover from pregnancy and to breastfeed children for the period of time recommended by the WHO. Other indicators of children’s health, including infant mortality rate and the rate of vaccination, are positively correlated with the availability of leave benefits. Moreover, the mental health of both children and parents is impacted by the amount of time parents take off following birth or adoption. For mothers in particular, congruence between the amount of time women would like to take off work and the amount of time they are actually able to has been found to produce the greatest mental health benefits postpartum or post-adoption; the flexibility of parental leave in Canada since 2001, which allows parents to split the amount of leave available to them, may help in achieving this goal of personal balance.

However, parental leave in both the EI and the QPIP schemes, though more flexible and generous since 2001 and 2006, reflects existing inequalities along both gender and socioeconomic lines. For heterosexual couples throughout Canada, the customizable distribution of parental leave ignores the wage gap between men and women. Since parents are reimbursed for 55% of their usual earnings only up to a ceiling of $50 800 throughout Canada, the higher-earning parent (often the father) is still incentivized to keep working and cede his potential leave time to his partner. Embedded gender roles and stereotypes continue to influence the lower take-up of parental leave amongst Canadian fathers. In Quebec, the distinct, non-transferrable paternity leave has incentivized more fathers to take time off following birth or adoption. However, empirical results of the post-2006 program suggests that many fathers do not use their full paternity benefits and the majority of paternal leave weeks are still allocated to the female partner. Furthermore, single-parent families in Quebec – the majority of which are headed by women – are not able to access these non-transferrable benefits.

Moreover, a close analysis of parental leave reveals, in practice, differential benefits along socioeconomic lines. In general, the 55% wage-replacement level offered through EI does not make parental leave accessible to low-income individuals who rely on their full income to cover living expenses. In Quebec, the more flexible system allows parents to choose to take fewer weeks of leave in exchange for higher levels of income replacement. However, even 75% replacement is not sufficient for many low-income and single-income families.

Additionally, many employers offer “top-ups” as part of their compensation packages, meaning that employees may be reimbursed the remaining 25-45% of their earnings during their period of leave. In 2010, employees in Quebec were five times more likely than those in other Canadian provinces to receive these benefits. However, “top-ups” are generally more available to higher-income individuals, leaving low-income earners with base statutory levels. Furthermore, parents in the non-standardized workforce (disproportionately women) are both unable to access these employment benefits and face difficulty accessing statutory levels across Canada. Though qualification for leave benefits in Quebec requires $2000 worth of insurable income rather than the 600 hours required under EI, many students and non-standardized workers still face difficulty accessing even the statutory amount of compensation. Additionally, since these “top-ups” are not governmentally regulated, many employers provide these benefits only to their female employees, thus perpetuating the gender inequality of the leave system in practice.

Given the academic consensus that parental leave is both important for parents’ and children’s health and has the potential to combat gender inequality in the labour market, we should find these discriminatory effects of the EI and QPIP systems unsettling. This legislative scheme, however, doesn’t operate in a vacuum: the availability of social support structures such as compassionate care benefits, parents of critically ill children (PCIC) benefits and public childcare interact with and affect parental leave in complex manners. For example, among heterosexual couples in Quebec, the majority of fathers claim benefits at the same time as the mother, whereas in other provinces, fathers who claim benefits usually do so in staggered intervals with their partners. This important distinction suggests that the availability of publically provided childcare (which, despite serious rationing issues, is nominally open to all parents in Quebec) carries at least the same weight as physical and mental health considerations when parents consider how to allocate their statutory benefits.

Furthermore, many scholars advocate more flexibility in the time frame in which parents can access benefits. Parental leave weeks cannot be reserved for a period beyond the first year of a child’s life. Consequently, parents cannot access compensated and job-protected leave to care for sick children over a year old unless they meet the more stringent eligibility for compassionate care benefits under EI. This system has been criticized, as children from lower-income families are less likely to receive parental home-care after parental leave benefits expire.

Like all social programs, parental leave is tied up in a patchwork of legislation that aims to provide financial support for Canadian families. Through the EI 2001 reforms, and more dramatically through the 2006 introduction of the QPIP, parental leave has become steadily more flexible and available for all Canadian parents. However, until the introduction of leave incentives that counteract embedded gender inequality in the workplace and the inability of low-income parents to take a meaningful period of leave, the health benefits for both parents and children will continue to be inequitably distributed amongst Canadian families.

Revisiting Hamilton Health Sciences Corporation v. D.H.

Posted By Chris Laliberté

When illness threatens to steal a child from their community, tensions can reach their limits as time runs out. Parents, doctors, social services, and others clash over how best to care for someone too young to comprehend what is happening to them. In the past, courts have grappled with complex issues where religious freedoms conflicted with life-saving operations, compelling parents to withhold consent. In the fall of 2014, the Ontario Court of Justice had these cases in mind as Justice Edward J. was tasked with deciding whether an eleven year-old First Nations girl (J.J.), suffering from acute lymphoblastic leukemia (ALL), would be taken into custody for chemotherapy treatment. The decision in this tragic case concerned a child’s capacity to consent to care, the applicability of Aboriginal rights claims to traditional practices, and whether parents choosing alternative treatments in good faith can be deemed to be endangering their child. Continue reading “Revisiting Hamilton Health Sciences Corporation v. D.H.”

The Genetic Discrimination Crisis

Posted By Jennyfer Pelletier

What is genetic discrimination?

Canadians are at risk of facing genetic discrimination. This type of discrimination occurs when an individual is treated unfairly due to differences in their genetic information. Genetic sequencing tests can be used to identify genetic mutations in an individual’s DNA that are associated with diseases including “prostate cancer, certain breast and ovarian cancers, kidney diseases, Huntington’s ALS and cystic fibrosis“. The genetic information obtained from these tests is beneficial as it can open up the possibility for treatment and even prevent the emergence of diseases in the first place. It is important to note that a mutation does not mean someone will necessarily develop a certain disease; it often only indicates a higher risk of developing that disease.

Genetic discrimination tends to arise in insurance and employment contexts where a person may unjustly be refused employment or insurance based on the faulty assumption that they will actually develop the disease. Genetic sequencing tests are becoming increasingly accessible and are often recommended by doctors when family members have been diagnosed with a disease linked to genetic mutations. However, Many Canadians opt not to have genetic tests “for fear that the results will impact their insurability or their present or future employability“. Consequently, they do not have the information necessary to take any available preventative steps. Some conditions, such as Hemochromatosis, can be easily treated. Unfortunately, 80 percent of those affected are unaware and many who are tested and diagnosed are denied insurance.

Fears of genetic discrimination are not unfounded. Indeed, instances of genetic discrimination have been documented in Canada and are continuing to grow. Teresa Quick’s story is just one example. At 27 years old, Teresa opted for genetic testing for the BRCA 1 gene mutation because both her mother and grandmother died from cancer. A mutation in this gene would indicate a higher chance of developing breast or ovarian cancer. Teresa tested positive for the mutation and opted for a preventive double mastectomy to greatly reduce her chances of developing the disease (Angelina Jolie also famously underwent this procedure after testing positive for the BRCA 1 gene, and reduced her chances of developing breast cancer from 87 to under 5 percent). When Teresa applied for critical illness insurance to cover her mortgage in case she fell ill, the insurance provider denied coverage due to her family history with cancer. A genetic counsellor commenting on Teresa’s situation explained that it is not uncommon for applicants with a history of certain cancers linked to mutations, like the BRCA gene, to be denied insurance.

In the employment context, genetic discrimination may interfere with someone’s employment or promotion prospects, or result in the termination of their job. For example, a 24-year old man was fired from his job after his boss found out he had tested positive for the Huntington’s gene even though the disease usually manifests itself during middle age or even later.

Genetic discrimination is also causing controversy in other circumstances. For example, in 2012, a boy in California had to leave school, a few weeks into sixth grade, because of his DNA test results. Colman had genetic markers for cystic fibrosis. Children with this disease cannot be in proximity of each other, as they are more vulnerable to infections. Since two siblings with cystic fibrosis already attended the school, Colman was forced to leave even though he did not actually suffer from the disease. His parents filed a claim against the school district alleging genetic discrimination.

In Canada, there have also been examples of genetic discrimination with regards to adoption and child custody.

Is your genetic information protected?

In 2008, the United States adopted the Genetic Information Non-discrimination Act (GINA), a federal law meant to prevent genetic discrimination by health insurers and employers. However, the Act does not include life insurance, disability insurance, or long-term care insurance. Furthermore, the law does not protect people from genetic discrimination where an employer has fewer than 15 employees. GINA also does not alter the provision of the Americans with Disabilities Act, “under which an employer, after a conditional offer of employment, lawfully requires an individual to sign an authorization to disclose all of his or her health records“. Since there is no practical way to separate genetic and non-genetic information in health records, it is likely that many employers will receive genetic information. Due to its shortcomings, it is unclear whether GINA will assuage fears of discrimination.

In Canada, on the other hand, there are no existing legislative provisions specifically prohibiting genetic discrimination. Hence, any third party who obtains access to someone’s genetic test results may use it against them. When the Global Genome Project began, Canada took a “wait and see” approach to the potential need to safeguard genetic information. Twenty-five years later, Canada is the only G7 nation that has yet to protect genetic information. However, Bill S-201, An Act to prohibit and prevent genetic discrimination, has recently reached a second reading in the Senate.

This bill intends to create a new Genetic Non-Discrimination Act that would “prohibit anyone from requiring someone to take a genetic test or to disclose the results of a genetic test”. Furthermore, it would prohibit the use of genetic test results as a condition to provide services or enter into a contract with someone. Although there were concerns that the legislation would be unconstitutional by infringing on provincial powers, Legislature relies on the federal criminal power and aims to prohibit misconduct. Insurers have argued that Bill S-201 would make their business model unviable. However, research commissioned by the Office of the Privacy Commissioner of Canada concluded that prohibiting the use of genetic information “would not lead to a significant economic impact on the industry“. The Bill would also amend the Canada Labour Code, the Canadian Human Rights Act, the Privacy Act and the Personal Information Protection and Electronic Documents Act. A contravention of this Act would constitute a criminal offence with severe penalties, including a $1-million dollar fine and up to five years of imprisonment. Overall, this Bill seems to implement broader protection that fills many of the gaps in the United State’s legislation.

Conclusion

Genetic discrimination is a real obstacle to increasing the well-being of Canadians. According to Dr. Ronald Cohn, a senior scientist at the Hospital for Sick Children, “33 per cent of families refused to participate in a study that could have life changing diagnostic implications for their seriously ill children, citing genetic discrimination“. Hence, it is important for Canada to enact legislation that will properly protect its population from genetic discrimination in all contexts so that it may benefit from advancements in genetic testing and medicine.