Miscarriage May Soon Qualify for Disability Leave

Ontario Human Rights Tribunal Could Change How Pregnancy Loss Treated

by: Alex Thom
Miscarriage may soon qualify as disability leave | YummyMummyClub.ca

I suffered a miscarriage at 19.5 weeks gestation.  I remember the nurses hustling around me discussing my "fetus," and the ultrasound technician talking about the "fetus." It seems absurd to classify my baby as a fetus, to not be able to "technically" say I had a stillbirth despite labouring and delivering my baby.  At 19.5 weeks, a baby is around 14cm (almost 6") long. Look at your hand. My baby would have stretched from my wrist nearly to the tip of my middle finger. But I wouldn't know, really, because I never held my baby. I never looked at my baby. After the horrific experience, I left the hospital emptier than I'd ever felt, and more alone than I knew was possible. 

Under current Ontario provincial law, women who lose a pregnancy more than 17 weeks before the due date are not eligible for pregnancy leave. I can tell you that had I been in the mainstream workforce at the time of my miscarriage, I would not have been fit for returning to work the next day. Or even the next week. My miscarriage threw me for a loop physically and emotionally, and the scars are long-lasting and deep. I would have been expected to return to work the following day, or take leave without pay. But all this could change thanks to a precedent-setting decision made by the Ontario Human Rights Tribunal in favour of Winnie Mou of Markham, Ontario.

Within a short period of time, Mou suffered a miscarriage and the loss of her mother-in-law, triggering severe depression and her absence from work resulted in being fired. Mou's lawyer Morgan Rowe is quoted as saying, "...a disbability should not be defined by the biomedical issue but rather how that medical issue affects one's participation in society." And that's just it — there's so little discussion around grief and trauma suffered by those who have miscarriages that we also sweep the after-effects under the rug. Expecting someone to return to work immediately isn't a one-size-fits-all decision. Some people may feel comfort in returning to routine, whereas others may need more time to process the events and begin to heal.

In the final decision, adjudicator Jennifer Scott stated, "I also find the applicant's miscarriage is a disability. I acknowledge that a miscarriage . . .  is not a common ailment, and it is certainly not transitory. It is clear . . . that she continues to experience significant emotional distress from the miscarriage even today", making this the first time a woman has been able to claim disability leave for a pregnancy lost before 23 weeks gestation.

I know there are many people who would argue that this time off isn't required, or that even they wouldn't  need it, and that's fine. It's ok to be able to move forward immediately from a miscarriage. But it's also ok to be sideswiped by a miscarriage and devastated. It's ok to need to grieve and heal physically and emotionally from the loss, and it's ok to not be able to pick oneself up and join society right away.

These decisions matter, and they're positive, because if it gives one more woman the strength to speak up and get the help she needs to properly heal from a miscarriage, they're worthwhile. For too long, we've expected women to keep miscarriages to themselves, to not discuss them, or to brush them off as no big deal, when clearly that's not a universal experience at all.

If you or someone you love has suffered a miscarriage, please reach out for support. You can speak to your family doctor, midwife, or OB/GYN, or contact one of the organizations below.

Bereaved Families of Ontario
Halton Infertility and Pregnancy Support Services
Pregnancy and Infant Loss (PAIL) Network
Infertility Network

 RELATED: Going on Disability Leave When I Miscarried Wouldn't Have Been Right For Me