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Expanded Maternity Leave IRR: All you need to know (Part II)

This is Part II of easy-to-read FAQs on the Expanded Maternity Leave Law. If you want to check the full text of the EML IRR, you can check it out in Part I.

Are female workers of the informal economy, and voluntary SSS contributors eligible to access maternity leave benefits?

Yes, if they have remitted three monthly contributions to the SSS within the twelve-month period before the semester of childbirth.

Who are considered informal economy workers?

Female workers in the informal economy are those who are self-employed, occasionally or personally hired, or subcontracted; paid and unpaid family workers in household enterprises, including home workers; micro-entrepreneurs and producers, and operators of sari sari sores.

Who are considered voluntary SSS contributors?

These are Stay-At-Home spouses, an OFW who upon termination of her contract overseas, continues to pay SSS contributions, a covered employee separated from employment who continues to pay SSS contributions, a self-employed member who realizes no income in any given month but continues to pay SSS contributions.

Can maternity leave be allocated?

Yes, a female worker may allocate up to 7 days of leave to the father of the child, whether or not they are married. In case of death, absence or incapacity of the father, the female worker may allocate the leave credits to a relative within the fourth degree of consanguinity, or the current partner of the female worker sharing the same household.

May the current partner be female?

Yes. The IRR contains the phrase “regardless of the sexual orientation or gender identity” of the partner.

Is the option to allocate applicable in the case of miscarriage or emergency termination of pregnancy?

No.

How much will the female worker in case she opts to allocate?

She will be paid the amount corresponding to the period not allocated.

Who will pay for the seven-day allocated leave?

The seven-day allocated leave is paid leave and will be borne by the employer of the father, or the alternate caregiver as the case may be.

How is the intent to allocate conveyed?

The intention to allocate is conveyed upon application of the maternity leave. Likewise, the father or the alternate caregiver must also inform his employer of his allocated leave.

What if one of the parties is from the public sector, and the other from the private sector? Can the female worker still allocate leave credits in that case?

Yes.

Must the allocated leave be used in a continuous manner, or can it be used intermittently?

It can be either continuous or intermittent. However, it should be consumed within the period of the maternity leave of the female worker.

What if the female worker dies?

The balance of her maternity leave shall accrue to the father, or the qualified alternate caregiver. If the money benefits have already been paid in full, the father or qualified alternate caregiver may still enjoy the remaining leave credits but without pay.

Is it a criminal offense to deny maternity leave benefits to qualified female workers?

Yes. The law punishes with a fine of not less than 20,000 pesos and not more than 200,000 pesos and imprisonment of 6-12 years anyone who violates the provisions of this law.

General

Expanded Maternity Leave IRR: All you need to know (Part 1)

So the Expanded Maternity Leave IRR is out! What great timing: on Labor Day, as a tribute to workers everywhere, and less than two weeks before Mother’s Day, as a tribute to all Moms. Since our office, the office of Akbayan Senator Risa Hontiveros, is the sponsor and champion of this law, I thought I would prepare a set of FAQs based on the law and the Implementing Rules and Regulations for working-out-of-the-house Moms like me. The law is available via this link. If you want to read the full text of the EML IRR, you can read it below:

This is PART 1: MATERNITY LEAVE FOR PUBLIC SECTOR AND PRIVATE SECTOR EMPLOYEES.

I will be posting PART 2 soon: ALLOCATION OF MATERNITY LEAVE CREDITS (the Daddy Quota!), MATERNITY LEAVE FOR VOLUNTARY CONTRIBUTORS (informal workers, freelancers, OFWs) and NATIONAL ATHLETES.

First things first, when is the effectivity date of the EML?

The EML has been effective since March 11, 2019. (This is 15 days after the official date of publication, which I think has been set at February 23). This means that all qualified female workers who delivered or miscarried on March 11 or later shall enjoy benefits under the law. This confirmed by the SSS in an interview quoted by Smart Parenting.

What are the maternity leave benefits under RA 11210?

Generally, a qualified female worker who has delivered an infant is entitled to receive 105 days of maternity leave, full pay, with an additional 15 days if the female worker is a solo parent. She is entitled to 60 days of maternity leave, full pay, in the event of miscarriage or emergency termination of pregnancy. The female worker may also choose to allocate a maximum of seven days to the father of the child, or in his absence, a qualified alternate caregiver. An additional maternity leave of 30 days may be availed of, on top of the 105 days, without pay.

What is the amount of maternity leave benefit that qualified female workers are entitled to?

All qualified female workers employed in the formal economy are entitled to full pay.

What exactly is the definition of full pay?

Full pay refers to all remuneration or earnings paid by an employer to a worker for services rendered on normal working days and hours not lower than the wage rate fixed by the Regional Tripartite Wages and Productivity Board including allowancesprovided for under existing company policy or collective bargaining agreement, if any. Full pay in the public sector, on the other hand,  includes the basic salary and allowances as may be provided under existing guidelines.

Is there a maximum number of times that maternity leave benefit can be availed?

Maternity leave shall now be granted in every instance of pregnancy, miscarriage or emergency termination of pregnancy, regardless of frequency.

What about multiple childbirths (twins or triplets)?

The female worker shall enjoy only one maternity benefit, regardless of the number of offspring.

What about overlapping maternity benefit? (This can happen when, during the 105-day maternity leave period, the female worker gets pregnant again, but miscarries; or, during the 60-day period after miscarriage, the female worker gets pregnant again then miscarries again)

The female worker shall be enjoy maternity benefits for the two contingencies, but the leave must be utilized in a consecutive manner.

How shall the maternity leave be used?

Enjoyment of maternity leave cannot be deferred but should be availed of either before or after the actual period of delivery in a continuous and uninterrupted manner. It can be credited as combinations of prenatal and postnatal care, but in no case shall postnatal care be less than 60 days.

Who are qualified to avail of maternity leave benefits under RA 11210?

Female workers in the public sector, female workers in the private sector, female workers in the informal economy, female workers who are voluntary contributors to the Social Security System, and female national athletes.

Who qualifies as a solo parent?

Solo parent refers to a covered female worker who falls under the category of a solo parent defined under Republic Act 8972 or the Solo Parents Welfare Act of 2000.

Public sector employees

Who are considered female employees in the public sector?

This category includes any pregnant female worker in the government service, regardless of employment status and length of service, in National Government Agencies, Local Government Units, Government Owned and Controlled Corporations, State Universities and Colleges or Local Universities and Colleges. Employment status may be permanent, temporary, coterminous, fixed term, casual, contractual, substitute or provisional.

May maternity leave also be availed of by teachers during long vacations?

Female teachers may also avail of maternity leave even during long vacations, i.e., summer and Christmas, in which case, both the maternity leave benefits and the proportional vacation pay (PVP) shall be granted.

How will public sector employees be paid?

The female worker shall have the option to receive full pay through lumpsum payment or regular payment of salary through agency payroll.

How are disputes to be resolved?

For public sector employees, disputes shall be filed initially to the head of agency and then appealed to the Civil Service Commission. The agency shall not hold or delay the payment of full pay to the female worker pending the resolution of the dispute.

Private sector employees

Who are considered qualified female employees in the private sector?

To qualify for the grant of maternity leave benefit, the female worker must meet the following requirements: (a) three monthly contributions in the twelve-month period immediately preceding the semester of childbirth or miscarriage; (b) the female worker shall have notified her employer of her pregnancy and the probable date of her childbirth, which notice shall be transmitted to the SSS.

Are domestic workers (kasambahay) included?

Yes, they are included. The IRR defines employed female worker as “a female worker, including a domestic worker, who performs services for an employer in which either both mental or physical efforts are used and who receives compensation for such services, where there is an employer-employee relationship.’

What if the SSS benefit is lower than the actual pay received by the female employee?

Employers from the private sector shall pay the difference between the full salary of the female employee and the money benefits received from the SSS. (For example, if the employee receives 30,000 pesos a month, and then receives from the SSS 16,000 pesos as the monthly maternity benefit, the company has to be shoulder the balance of 14,000 pesos.) This is subject to exceptions, such as if the employer is a distressed establishment, is employing not more than ten workers, and is considered a micro-business enterprise with total assets of not more than 3 million pesos. (To know more about this, please refer to the IRR, which outlines the exceptions in detail).

How are disputes resolved?

Disputes relating to SSS payments shall be lodged before the SSS. Disputes regarding the payment of salary differential, and labor standards issues, shall be filed before the DOLE.