Paid Maternity Leave and Benefits for Adopted Puppy - Essay Example

Paid Maternity Leave and Benefits for Adopted Puppy: A Legal Argument for the Plaintiff Preliminary ment Ms. Lumierre, a 31-year-old, Barrie Ontario resident is filing a legal dispute against the federal government and her employer (Mirage, a tracking company). She accuses both for having failed to give her paid parental/maternity leave benefit following her adoption of a puppy. The respondent denied the plaintiff up to 40 weeks of ‘top-up’ payments that are normally automatically given to other employees together with the Employment Insurance (EI) parental and maternity benefits. The federal government denied her the application for these benefits and the employer also denied her the ‘top-up’ payments. The federal government denied her the EI on the grounds that only biological mothers qualify for the benefit. The federal Employment Insurance office argued that the parent and maternity leave were only available to parents and mothers of ‘human children. The EI rejected her application on the basis of Employment Insurance Act (Canadian Heritage 2015). The plaintiff will sue the respondent based of her stereotypical beliefs, myths and norms supported by the Charter of Rights and Freedom Act, based on Section 10(1) ‘family status’ and ‘perceived ground.’ The plaintiff in her sober mind understands that the baby dog is like a human baby (Schwartz 2005). The plaintiff is also burdened with the fact that she is going to fail as a parent when she is not allowed by the respondent to take care of her ‘baby’. This paper challenges the EI Employment Insurance Act to justify reasons why Ms. Lumierre legally qualifies for maternity/paternity leave and benefits. The paper first constructs the jurisdiction behind the case for better understanding and then argues for the plaintiff’s case (Schmid and Weitzel 1984). Introduction The ESA Act, 2000 (Employment Standards Act) offers eligible pregnant or new parent employees with the rights to be given unpaid time off work. On the other hand, the Employment Insurance Act offers the qualified employees with parental and maternity benefits (Gallagher and Noel 1980). The benefits are payable to the employees when they are on off on parental leave or ESA pregnancy leave. The rules that governs the right to take an off from work for parental and pregnancy leave under ESA are different from the federal Employment Insurance Act rules regarding the payment of parental benefits and maternity benefits. The Law: Canada Federal Government on Paid Parental/ Maternity Leave The Canada Labour Code through the Labour Standards provides for parental leave and maternity related jurisdictions. The parental leave is the time-off from employment while the employer holds the job open. An employee is entitled to parental leave when adopting a child or when having a baby. To qualify for the parental leave, the parent must have worked for a total of 600 insurable working hours in the year. The employee must have also contributed to the EI (Employment Insurance) during the same year (Barbara, 2015). In Barrie, Ontario, the new parents must have worked for about 13 weeks to claim for their time off work. The birth mothers who spent their pregnancy leave are liable for 35 weeks parental leave. Those who did not spend their pregnancy leaves are liable for up to 37 weeks (Barbara, 2015). The labour standards define a parent as a birth parent or a person in a relationship with another parent who has a child and the two plan to treat the child as their own (the relationship has to be permanent). A parent is also defined as an adoptive parent, whether the adoption has been legally finalized or not. The ESA has defined provisions that permit the employee to take some time from work and to be absorbed back at the end of the leave. Under the ESA jurisdiction, an employer is not mandated to pay a worker who is on parental or pregnancy leave (Pradeep, 2000). However, the employer must continue with the payment of the employee premium shares, for instance, life insurance, pension plans, extended insurance health, accidental death and dental plan. Again, the employees who have taken the leave may qualify for the parental benefits or employment insurance maternity benefits through the federal government employment insurance scheme (Schwartz 2005). Before beginning the parental leave, the employee must notify the employer in writing at least two weeks earlier. Sometimes the employer may request that the employee provides a certificate from a professional and legally certified medical physician that indicates the baby’s due dates. The employee has to provide the certificate in case the employer requests for one (Karen 2008). An employee who qualifies for a parental leave is entitled to the same job and position he or she had before going on the leave. They may also have a comparable job that measures up to the job or position he or she held before going on the leave. It is directed that the employer pays the employee the same amount of salary or more as before going for the parental leave. In case the salaries went up when the employee was in leave, then she or he is entitled to a salary increase. The Law: Employers on Parental Leave A new parent, whether working on part-time, full-time or a permanent basis, is entitled to parental leave provided that the employee was employed for not less than 13 weeks before going on the parental leave. Alternatively, if the employee is employed by an employer who is a member of the ESA. A parent who has qualified for a parental leave enjoys the right to be free from the penalty. Such a parent cannot be penalized for taking parental leave, cannot be penalized for eligibility to take a leave, or will be eligible to take the parental leave. The employee also has the right to continue taking part in his or her benefits plans (Schwartz 2005). Who is a parent? The code describes a parent as a birth parent; an adoptive parent; or a person in a relationship with the biological parent of a child and the two intends to marry or are married. Charter of Rights and Freedom i. Perceived grounds Ms. Lemierre can be protected under the Charter of Rights and Freedom Act because she has been treated differently at her place of work due to the negative elements that the other employees associate with one of the grounds. The question that should be determined here is whether Ms. Lemierre is perceived to belong to a special protected group, even if her point of view is not accurate. This analysis looks at the plaintiff’s myths, perceptions and stereotypes underneath her experience and considers subjective effect of the treatment, instead of the intention behind the treatment (Barbara, 2015). Ms. Lemierre is quoted saying that she ‘wants my forty weeks of leave just like other mothers are given leave. She also says that ‘taking care of my adopted dog is a full time job like any other, and if I am not with her for every moment that she needs me, then am failing as a parent.’ Again when she is asked if in her mind she believed the puppy is a baby and in case there is any big difference between a baby and a puppy, she gladly replies, ‘of course not. A puppy is definitely a baby, a dog baby.’ Ms. Lemierre’s case can probably be best demonstrated using an example. For instance, a heterosexual employee is likely to be taunted by fellow employees at the place of work due to sexual orientation that says that he is gay (Schmid and Weitzel 1984). The people and the employee who make the negative comments are not sure if he is gay or not (Gallagher and Noel 1980). The employer ignores the comments and insults by the employees as mere jokes. In this case, the employee is protected by the Charter of Rights and Freedoms Act, on perceived grounds. Another example; an employee who was suffering from a heart disease get fixed by a doctor (Canadian Heritage, 2015). The man applies for a promotion to an available vacancy at his place of work which he so qualifies to be given. The man is not given the job even though he had been cured. He misses the job because it is perceived that he has a limitation. The man is protected by the code on the ground of disability (Pradeep, 2000). Ms. Lemierre in her world understands that her only baby is the dog. She does not have any other baby, and she believes that a dog is a baby. The code protects Ms. Lemierre based on her life experience, perception, myths, and stereotypes. The employer denies her the parental leave because they perceive that she does not need the dog, but the dog is a fundamental part of her being (Schwartz 2005). ii. Family status The section 10(1) of the Charter of Rights and Freedom defines the ‘family status’ as being in a relationship with a child and a parent. The ground of the family status protects non-biological relationship between a child and a parent, for example, families created through step-parent relationships, adoption relationships, lesbian parents, non-biological gay, and foster families. The code also protects those who are in a ‘parent-and-child-type’ relationship. For example, an employee’s taking care of his sister’s son because her sister is undergoing some lifetime kind of ailment, and she is not in a position to provide for her son. The employee can request for accommodation at the place of work and get denied. Such an employee can file a complaint of discrimination (Schmid and Weitzel 1984). The family status ground also constitutes a relationship that exists between adult children and the parents who take care of them. The protection also passes to the persons giving the elderly people care or others in a ‘parent-type’ relationship with their caregivers. For instance, a person who offers eldercare to his or her grandparent who took care of him or her or took part in upbringing may have the protection under the family status code (Schwartz 2005). The Charter of Rights and Protection Act’s protection of the family status may sometimes overlap with grounds like sex, sexual orientation, marital status (including gender identity and pregnancy). It covers a diverse range of family forms, which includes blended families, lone-parent, and common-law or same-sex relationships. The Supreme Court dictates that discrimination occurs in the family status when a person is treated negatively because that person has developed a relationship with a certain family member (Schmid and Weitzel 1984). This means that if an employee is sent away from his place of work or denied a job just because the current employer does not like the employees parent or child, then the employer is discriminative of the the employee on their family status. Whenever a problem is raised concerning a family status, it is crucial that persons intersecting impact like sexual orientation, age, sex and race be taken into consideration. Also, it should be considered whether the person or a family member has a disability. The disability part is clearly described in the Section III-3a under ‘where grounds intersect.’ The code also prohibits the treatment of an employee differently, either intentionally or unintentionally, due to family status (Gallagher and Noel 1980). The employers have the responsibility to accommodate their workers, who are short of undue hardship, because of their eldercare or child-care responsibilities. It is the social responsibility of the employer to ensure that the employees are provided with reasonable working environments to meet the needs of the workers who have the family responsibilities. Additionally, the Commission has recommended that the employers bow down to and accommodate a wider range of family relationships other than those described in the family status and the grounds of marital status (Pradeep, 2000). A good example is when drawing an accommodation caregiving needs policy, an employer should include the extended family, siblings, and other persons who depend on the employee for help. The puppy is represented here by ‘other persons.’ The employer should, therefore, include the mother’s puppy as an extra person to give care. The woman is therefore discriminated on the basis of family status. Here are the kinds of bias and stereotypes that may lead to discrimination based on the family status: The people who are perceived to be caregivers or people who provide caregiving may be assumed to be less committed, competent and ambitious than others (Paoli 1982). The female workers who have caregiving responsibilities may be shunted onto the ‘mommy track . They may ultimately be over learning opportunities, promotions and recognition because of the mothers attributes, bias, and or consciousness/ unconsciousness (Schwartz 2005). The majority of the men who take up the caregiving responsibilities are viewed as less manly because they do not oblige to the expected gender stereotypes and roles. It may be perceived that the bi-sexual, gay, transgendered and lesbian people do not have the ‘real families.’ These groups of people do not have caregiving responsibilities (Schmid and Weitzel 1984). Men who assume the role of caregiving may be perceived to be less manly because their roles do not conform to gender stereotypes. It may be perceived that the transgendered, bi-sexual, lesbians, gay, and homosexuals do not have their real families. The truth is that these people have loved ones, and they do have caregiving responsibilities. The stereotypical perceptions are making it for these groups of people, and their caregiving responsibility look ‘invisible.’ Families created out of an adoption may be perceived as less real or not valid like the biological families. The family status codes bring in specific exceptions to the right to be employed without oppression and discrimination. The subsection 24(1)(d) of the Code says that an employer can grant employment, withhold employment or advancement for employment or an employee’s parent, child or spouse (Paoli 1982). This regulation allows the employer to oppose or support a narrow range of nepotism that is rife with the hiring practices. Justification We are in a digital world, a world full of different views, passions, thoughts, likes, and perceptions. It is undeniable that several human beings on the planet treat their pets like their children. Pets are our companions, and they love us just like we love them. In 2014, only last year, in June 2014, the CTVNEWS shocked the world with a bold headline ‘Puppy Leave: B.C. woman takes a ‘maternity leave’ to welcome her new dog.’ Tanya Oliva decided to take time off work to spend time with her newborn dog, Casper (Mike, 2014). In her words, ‘I have taken maternity leave solely for my new puppy’ ‘nothing compares to having a four legged child.’ Tanya claimed that even though it may look ordinary for some people, she has taken the leave to care for the pet, and she does not see any big difference between the current leave and the other leaves for caring new-born (Schwartz 2005). Tanya claimed that every woman, child, man, and animal should have the best chance in life, and through her maternity she was giving the puppy the chance to be a good dog (Canadian Heritage, 2015). Even though she was not legally and technically permitted to take a paid leave for the dog, Tanya took a paid vacation to spend the time with her child for the first time (Mike, 2014). Ms. Lemierre is one such a soul who places her love, interest and believes in her puppy. While other people may view this as ordinary, it is real and the people who take care of their puppies and other pets as their children feel oppressed when they are denied the chance to spend the time with them (Schmid and Weitzel 1984). Like the gay people and the lesbians are perceived not to have real families, the plaintiff is discriminated on the perception that she does not have a real family (Gallagher and Noel 1980). It does not matter what the other people think or feel about the plaintiff, what matters is the fact that she feels oppressed. The rules are working against her beliefs and the fact that the dog is part of her life, and makes lots of meaning to her. The Charter of Rights and Freedom Act, protects the men who undertake caregiver roles, families created out of an adoption, and other people with different kinds of sexual orientations like the gay and transgendered (Schmid and Weitzel 1984). Its worthwhile asking, why is a person who adopts a puppy denied leave to care for her or his love? A puppy – parent, is a special form of relationship that only the person that is involved recognizes it. The family status code protects the discriminated individuals on the ground of perception. The same code should protect the plaintiff of her love (Schwartz 2005). The federal government rejected the plaintiff application based on the fact that the plaintiff’s baby is not a human or biological baby (Paoli 1982). While it is clear those parents should make applications for maternity or parental leave only for the human babies, in her consciousness the plaintiff sees no difference between a human baby and an adopted baby. To the plaintiff, there is no difference between a human baby and her dog-baby. She fully believes that the dog is her baby (Pradeep, 2000). The plaintiff feels oppressed and discriminated upon on the grounds of perception. People think that her baby is not real, while in her consciousness, her baby is real. If she is denied the application, she feels that she is not going to be a responsible parent. The plaintiff wants to spend a good time with her baby and help raise her to be a well-mannered grown adult. The federal government has therefore ignored the charter of rights and freedom and gone ahead only to interpret the blanket Employment Insurance Act (Canadian Heritage, 2015). Further, the family status code prohibits the treatment of the workers differently, either knowingly or unknowingly, because of family status. It is the duty and the mandate of the employer to accommodate all their workers, who have special or undue hardships, because of their child care, or elderly persons care responsibilities (Canadian Heritage, 2015). The code has made it a social responsibility of the employer to ensure that all the workers are given reasonable environments for work to meet their needs and empower them to meet their family needs (Schmid and Weitzel 1984). To be more specific, the Commission has pointed out that the employers should go an extra mile to accommodate a bigger range of family relationships. They should extend their accomodation to other family types besides those described in the family status and on the grounds of marital status (Paoli 1982). The plaintiff is protected by this section and the employers should do the honorable thing and allow the plaintiff to not only take her full parental leave but also be paid all the benefits, pending her resign work after caring for her newborn. Works Cited Canadian Heritage. Your Guide to the Canadian Charter of Rights and Freedoms. Retrieved online on 24th March 2015 from http://www.pch.gc.ca/eng/1356631760121/1356631904950 Barbara M. F. From no go to no logo: Lesbian lives and rights in Chatelaine.The Canadian Journal of Communication. Retrieved online on 24th March 2015 from http://www.cjc-online.ca/index.php/journal/article/viewArticle/1692 Gallagher, R. and D. Noel. An International Perspective on Parental Benefits" in NAWL. Women in the Workforce: Affirmative Action and Parental Benefits. Ottawa: Columbia University Press, 1980. Karen A. B. Erasing mothers with disabilities through Canadian family Related policy. Published research study 2008 Paoli, Chantal. Women Workers and Maternity: Some Examples from Western Europe. International Labour Review, Vol 121 (Jan-Feb), 1982. Schmid, G. and R. Weitzel. Sex Discrimination and Equal Opportunity: The Labour Market and Employment Policy, Great Britian: Gower Publishing Company Ltd., 1984. Schwartz, L. Parental and Maternity leave policies in Canada and Sweden. A Queen’s University IRC Archive Document. 2005 Mike M. Puppy leave: B.C. woman takes maternity leave to welcome new dog. Retrieved Online on 24th March 2015 from http://www.ctvnews.ca/canada/puppy-leave-b-c-woman-takes-maternity-leave-to-welcome-new-dog-1.1887082 Ministry of Health and Social Affairs. Financial Assistance to Families with Children. Stockholm: Ministry of Health and Social Affairs, 1979. Pradeep K. Union’s collective bargaining agenda on women’s issues: The Ontario Enterprise. Départment des Relations Industrielles, Université Laval. 2000 Read More