This Magazine

Progressive politics, ideas & culture

January-February 2022

The right to leave

People experiencing pregnancy loss deserve employee protections

Vanshika Dhawan

Design by Valerie Thai

When Julia Horel presented a report at an Annual General Meeting (AGM) for the non-profit where she worked, she had a secret. Less than 24 hours prior, she received gut-wrenching news. Sometime between the first ultrasound at eight weeks into her pregnancy and the follow-up two weeks later, she experienced a miscarriage. The embryo she had been carrying—that she was still carrying—was no longer viable.

Other than a handful of close colleagues she had confided in, the members of the non-profit for which she worked could not tell that anything was amiss. That early in the loss, Horel’s own body had not yet processed that she was no longer pregnant.

According to the Public Health Agency of Canada, 15 to 25 percent of pregnancies end in miscarriage. The average pregnancy lasts anywhere from 37 to 42 weeks; most miscarriages occur within the first 12 weeks of a pregnancy. In Canada, when a fetal loss occurs after 20 or more weeks of gestation, it is classified as a stillbirth. In 2019, there were 8.6 stillbirths for every 1,000 total births.

Though she had called in sick the previous day, Horel weighed the pros and cons of disclosing her loss to her bosses to excuse her absence and going through with her presentation. For Horel, it was not a difficult decision; she chose the latter, because disclosing was simply not an option, no matter the alternative. Following the AGM, she proceeded to take approximately two weeks off work.

The procedure Horel underwent occurred a full week after the ultrasound where she first learned of the miscarriage. Shortly after, she went back to the office for a day. Though work and social interaction with colleagues that day was relatively manageable, doing it again the next day felt impossible; because she could, she decided to take more time off. Recovery involved both emotional and physical healing, both of which occurred at different paces in different ways.

The weeks immediately following a miscarriage can be devastating. Horel specifically remembers forgetting to unsubscribe from an email service that informed her weekly of how large her embryo was—the size of a poppy seed, a sesame seed, etc. Thus, it was understandably triggering when she received the next email following her miscarriage. “I got an email being like, ‘your baby’s the size of a blueberry,’” Horel recalls. “That wasn’t great.”

Moreover, tech companies’ ad-targeting practices and algorithms can also result in being shown soon-to-be and new parent advertisements following a miscarriage or stillbirth. Gillian Brockwell, a Washington Post staff writer, wrote that she was served ads that assumed her baby had been born, despite having experienced a stillbirth and opting out of ads wherever possible.

The impact of pregnancy loss on employment outcomes is not very well studied worldwide. A team of researchers led by Stephanie Gilbert of Cape Breton University in Nova Scotia is performing a qualitative study on the supports (or lack thereof) that workplaces and employers have in place for employees who experience pregnancy loss and their partners. What is known, however, is that healing is not a linear process, and grief is not necessarily proportionate to the number of weeks of gestation. For some, the experience of being pregnant and suffering loss can be profound even when it occurs early on.

Though some employers offer sick days, short-term disability, or bereavement to help an employee recover from a miscarriage before 20 weeks of pregnancy, none are required to. In Canada, sick days are not mandated by statute, meaning that employers are under no obligation to provide them. In Horel’s case, bereavement leave wasn’t an option, but the nature of her small workplace, the support of her colleagues, and her accrued sick days allowed her to take as much time off as she did.

People who suffer pregnancy loss rarely have access to the flexibility and accommodation that Horel was able to use to take time off work. Across Canada, various statutes regulating employment standards mandate some form of leave after a pregnancy loss, but the eligibility criteria varies.

As per the Employment Standards Act in Ontario, for example, an employee who experiences a pregnancy loss less than 17 weeks before their due date is eligible for the pregnancy leave they would have taken. Any earlier than that, pregnancy leave is not available as an option and there are no statutory protections in place for miscarriages. In Quebec, the analogous legislation is the Act respecting labour standards. Similar to Ontario, people who experience pregnancy loss in the 20th week or later—which Canada officially classifies as a stillbirth—are entitled to the maternity leave they would have had. Additionally, the Act respecting labour standards also provides for a three-week unpaid leave in the event of a miscarriage before the 20th week. This leave can also be extended, provided it is justified with a medical certificate.

The United States also lacks federal laws requiring employers to provide leave following pregnancy loss, and parental leave policies differ greatly by state. In July of 2021, Senator Tammy Duckworth (D-IL) and Representative Ayanna Pressley (D-MA) introduced legislation called the Support Through Loss Act, which would support those experiencing pregnancy loss through access to workforce supports, resources, and patient-centred care.

If the legislation is enacted, the United States would be joining other nations in implementing these progressive policies. In March of 2021, New Zealand passed legislation that gives pregnant people and their partners the right to paid leave after experiencing a stillbirth or miscarriage. This special bereavement allowance entitles employees to three days’ leave. This also extends to parents who are planning to have a child through adoption or surrogacy and experience pregnancy loss. MP Ginny Anderson, who initiated the bill in New Zealand, hopes that this legislation will “stimulate a discussion around miscarriage, stillbirth, [and] childbirth”—topics that are skirted around in professional settings.

Pregnancy loss is not often a topic of discussion at work, likely due to the societal taboo around miscarriage in general. Despite being relatively common, it is rarely discussed publicly. This contributes to a host of issues, from pregnant people not being aware of what options are available when a loss occurs, to not knowing the different ways in which bodies can react and respond to fetal loss.

“I feel like there’s the sort of societal narrative of what miscarriage is. Like, you’re pregnant and then all of a sudden you’re bleeding profusely,” Horel explained when discussing her own experience. “But that’s not necessarily what happens to everyone. That’s not what happened to me.”

People tend to turn to private support networks within their own circles, though this requires knowing someone who has experienced something similar and is willing to be open about it. Despite information and support being available online, miscarriage can be an isolating experience without personal connections and open conversations.

The societal taboo, however, is not the only reason for pregnancy loss being a complicated topic of discussion in the workplace. Given that most miscarriages occur in the first 12 weeks, it is common for the prospective parent(s) to have kept the pregnancy quiet. Disclosing miscarriage means disclosing pregnancy and the idea that one is open to or trying to have children, which in and of itself can still be a delicate subject.

Considering pregnancy status as a factor in hiring or other employer decisions is considered discrimintation, as gender is a protected ground in the federal and all of the provincial human rights codes in Canada. This, however, simply means that an employee can seek redress, most often in the form of damages, after experiencing and suffering a quantifiable loss due to discrimination. The reality is that gender discrimination still occurs in workplaces across the country, in some cases much more covert than others.

Susanna Quail, a B.C.-based labour and human rights lawyer, says she sees employers hire replacements for her clients while they are on maternity leave, firing them when they return. “I think people know better than to say we’re not promoting you because you’re trying to get pregnant…. Employers know they can’t say, ‘We don’t want you to get pregnant,’” explains Quail, recalling clients she has previously worked with. “I mean, some employers still do it, but for the most part, they know they can’t say that.”

This is only exacerbated when employees belong to other marginalized groups. Quail notices a big difference between the clients she works with at the migrant workers centre and the private-paying clients’ cases she takes on. Migrant workers, for example, face language barriers and don’t have the same access to lawyers, and, therefore, access to justice. The precarity of work and financial barriers to seeking redress can force workers from marginalized communities to simply put up with employer conduct that violates employment standards.

To people who have not experienced it firsthand or don’t work in labour or law, it can seem absurd that this kind of discrimination still happens in this day and age. Quail herself recalls being in her late-twenties, when her boss at the time made a comment about the mistake he’d made hiring numerous young adult women, because many employees were taking maternity leaves. Seeing employers express such resentment has happened a few times in her current role as well. The discrimination still occurs, oftentimes in an insidious manner; the (potential) pregnancy is a part of the decision-making process despite employers couching the reasoning and justification in alternative language.

Pregnancy loss, on the other hand, is a grey area in the law. The question of whether discrimination—dismissal, for example—due to pregnancy loss could be considered human rights discrimintation on the basis of a protected ground has yet to be litigated. Quail believes there could potentially be a good argument to say that firing someone for absences due to pregnancy loss is discrimination on the protected grounds of disability, gender, and/or family status.

Given the complexities of the issue, Quail is a proponent of universal paid sick leave, because most workers do not have paid sick time in general, or limited sick time, especially if they are not unionized. The B.C. provincial government has committed to introducing paid sick leave and conducted consultations on what that may look like. In the last election, Prime Minister Justin Trudeau promised 10 days of paid sick leave for all federally-regulated employees.

In the absence of available sick leave, bereavement leave that applies only in cases of pregnancy loss would force employees to disclose their pregnancy. For some, this is a non-issue—a pregnancy can only be kept secret for so long. For others, leave following a miscarriage would remain inaccessible because the disclosure required to obtain the leave simply would not be an option.

Effective policy needs to be responsive to the various different emotional and physical experiences one can have following a pregnancy loss. Karla Pacheco, a Human Resources (HR) manager at a large non-profit in London, Ontario, emphasizes the importance of supporting employees throughout their time with the organization, and especially during difficult times. “I think it’s one of the best investments that an employer can make for company culture,” says Pacheco, citing her own organization’s holistic approach to benefits. “To invest money in there being an HR support for employees to trust, that has the authority and latitude to make exceptions and make recommendations.”

There will always be life circumstances that are inadequately covered by insurance and benefits policies, whether that’s experiencing a pregnancy loss or something else entirely, like being part of a same-sex couple and trying to access benefits that are not set up for you—a situation Pacheco has personally assisted employees with. “We really try to look at it in a way that we tailor it for individuals and deal with things separately,” Pacheco explains. “More and more there has to be that kind of latitude and exception because people don’t fit into a box.”

This only further emphasizes the importance for employers of operating through a lens of equity, diversity, and inclusion. Personal situations that may be undefined or unprecedented are difficult to raise with employers. Pacheco tries to avoid being prescriptive where possible, implementing that essential inclusionary lens. “Just because it is something we have not defined,” explains Pacheco, “does not mean it is something we are not open to.”

However, even universal paid sick leave that benefits all workers and creative solutions through collaboration between employers and employees remain inadequate to address pregnancy loss in a labour context. The physical and psychological toll that it can take on a potential parent and/or their partner is immeasurable. For some, a miscarriage may be an insigificant inconvenience. For others, it may be debilitating and devastating. Such is the nature of grief—it is fundamentally unpredictable.

Notably, not all individuals who experience pregnancy loss will experience grief. Implementing “bereavement leave” following pregnancy loss would also be prescriptive in a way, as bereavement denotes a specific, strong emotional response. Fundamentally, leave following pregnancy loss is more than just a labour issue—it is a reproductive health issue, and choice is essential to effective policy. Employees need the ability to choose what is best for them following a pregnancy loss. Options must be provided in a way that does not dictate how an individual “should” feel or act. The number of ways loss can be experienced is limited only by the number of humans who face it. Though a daunting task, it will be necessary for policy to both acknowledge and respond to this fact.

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