Salient Features of the Expanded Maternity Leave Law and its Impact on the Private Industry
In 2019, Congress passed into law Republic Act No. 11210, otherwise known as the “105-Day Expanded Maternity Leave Law”.
The law now grants to females working in the private sector, regardless of status of employment, the following benefits:
The new law has removed the limit of applicability to only the first four deliveries, and now allows the grant of the benefits regardless of the number of children or deliveries the female worker may have had.
The benefits shall be the same for normal spontaneous delivery and for delivery via caesarean section.
Miscarriage refers to loss of pregnancy before the 20th week of gestation, while Emergency Termination of Pregnancy refers to loss of pregnancy after the 20th week of gestation, and the event of still birth.
Leaves cannot be deferred and shall be rendered in a continuous and uninterrupted manner, regardless of holidays during the leave period. The leaves may be availed either before or after the actual period of delivery provided that post-natal care shall not be less than sixty (60) days.
The purpose of the law is to allow women to have ample transition time to regain health and overall wellness, and to assume maternal roles before resuming paid work. To lessen the sixty-day post-partum leave period would defeat said purpose.
In the event of two overlapping benefits, the benefits shall be availed in a consecutive manner, provided that the amount covering the overlap shall be deducted from the current claim.
The female shall be granted only one maternity benefit regardless of the number of offspring per delivery or childbirth.
The female worker must have at least three (3) monthly contributions in the twelve month period immediately preceding the semester of the childbirth, miscarriage or emergency termination of pregnancy.
For purposes of counting the required monthly contribution:
- The year is divided into four (4) quarters:
- January to March
- April to June
- July to September
- October to December
- A semester consists of two consecutive quarters.
- Exclude the semester of delivery, miscarriage or emergency termination of pregnancy.
- Count twelve (12) months backwards starting from the month immediately before the semester of delivery, miscarriage or emergency termination of pregnancy.
X gives birth in November 2020.
Exclude the semester of birth (July 2020 – December 2020).
X must have given at least three monthly contributions from July 2019 to June 2020.
The female worker must notify the employer of her pregnancy and the probable date of her childbirth:
- The female worker must immediately inform her employer upon confirmation of the pregnancy.
- The employer then notifies SSS.
Failure of the female worker to give notice to her employer does not bar her from receiving maternity benefits, subject to SSS Guidelines.
Should the employer fail to transmit the female worker’s notice of pregnancy and probable date of childbirth, and should the employer fail to remit to SSS the required contributions for the female worker, the employer shall be liable to pay SSS damages in the amount equivalent to the benefits which said female worker would otherwise be entitled to.
The law states that female workers shall receive full pay during her paid leave. Full pay refers to the actual remuneration or earnings paid by an employer for services rendered on normal working days, including allowances, and shall in no case be lower than the wage rate fixed by the Regional Tripartite Wages and Productivity Board.
The pay shall be advanced by the employer to the female worker within thirty (30) days from the filing of the maternity leave application, subject to reimbursement by the SSS.
A salient feature of the new law is the mandate on the employer to pay the difference between the full salary of the employee and the actual cash benefit from SSS.
The following shall be exempted from the payment of the salary differential:
- Distressed establishments;
- Those engaged in the sale of goods and/or services to end users for personal or household use and are regularly employing not more than ten (10) workers (excluding owners for at least six (6) months in a year);
- Microbusinesses engaged in production, processing, trade or manufacturing of products and commodities whose assets are not more than PHP 3,000,000.00; and
- Those already providing similar benefits.
The provision on payment of salary differential removes the situation where the female worker opts to go back to work before the end of the leave period for financial reasons, thus further giving life to the spirit of the law.
The law also provides for entitlement to maternity leave benefits if the delivery, miscarriage or emergency termination of pregnancy occurs not more than fifteen (15) calendar days after the termination of employment. The law deems the right to have “already accrued” to the female worker if the contingency occurs within the said period.
Under the new law, this 15-day period shall not be applicable if a female employee is found to be illegally or unjustly dismissed. If a female employee is illegally or unjustly dismissed, she may claim maternity leave benefits even beyond the 15-day period, and the employer shall oat the full amount equivalent to her salary for 105 days for delivery and 60 days for miscarriage and emergency termination of pregnancy. The reasoning behind this is that employment was never severed due to the illegality thereof, thus the female remains to be an employee entitled to the said benefit.
This provision (Section 8) is problematic in terms of its application and implementation, especially if you consider the contribution and notice requirements and the prescriptive period for the filing of labor cases.
Allocation of Maternity Leave Credits
One of the most important features of the Expanded Maternity Leave Law is the option of allocating seven (7) days of leave credits.
The allocation of leave credits shall be done only in cases of live birth, and solely upon the option and discretion of the female worker.
The female worker may allocate up to seven (7) days to the father of the child, regardless of whether they are married or not.
In the event of the death, absence or incapacity of the father, the leave credits may be allocated to an alternate caregiver, who shall either be:
- A relative of the female worker to the 4th degree of consanguinity; or
- Current partner of the female worker, regardless of sexual orientation or gender identity, sharing the same household.
This provision is novel as it recognized the reality that not all parents of children are married to each other. The provision also recognizes, on some level, the existence of same-sex relationships. This provision allows the female worker to have as much physical, psychological, and emotional support as she needs.
In the event of allocation, the female worker shall be paid by the SSS only for the unallocated days.
In case the leave credits are allocated to the father, the leaves shall be distinct and separate from his paternity leave credits, should he have any.
Unlike the female worker, the father or alternate caregiver need not serve the leave credits continuously.
Both the female worker and the father or alternate caregiver are required to notify their respective employers.
In case of the female worker’s death or incapacity during the maternity leave period, the balance of the leave credits accrues to the father or alternate caregiver, provided that the leave benefits have not yet been commuted to cash, if applicable; and provided that proof of death or incapacity is submitted.
If the leave credits have been paid to the female worker in full, the father or alternate caregiver shall enjoy the unexpired leaves of the female without pay.
Penalties and Dispute Resolution
Failure to comply with the provisions of the law shall be punished by:
- Fine of not less than Twenty Thousand Pesos (PHP20,000.00) nor more than Two Hundred Thousand Pesos (PHP200,000.00);
- Imprisonment of not less than six (6) years and one (1) day nor more than twelve (12) years; or
- Both fine and imprisonment.
If the act is committed by an association, partnership, corporation or any other institution, its managing head, directors or partners shall be liable for the penalties provided.
For claims arising out of the grant of the benefit, the claim or complaint shall be filed with the Social Service Commission. Should the claim relate to the payment of salary differential, the same shall be filed with the appropriate Department of Labor and Employment Field Office.
The law is good but not without unintended consequences. While the law benefits females and grants them with longer paid leaves, the same may be viewed by employers as a deterrent in hiring females.
Possible discrimination has been foreseen such that Section 16 of the law provides that no employer whether in the public or private sector shall discriminate against the employment of women in order to avoid the benefits provided by the law. However, such discrimination is difficult to prove and prosecute.
The extended period of maternity leave may also negatively affect the career growth of a female worker. The law warns, however, that the exercise of this option by them shall not be used as basis for demotion in employment or termination.
The burden thus falls upon the employer to ensure that these provisions are followed. The Department of Labor must be vigilant in ensuring that these provisions for the protection of the female workforce are implemented so as not to frustrate the purpose of the law.