Examining the proposed extended maternity leave

Amicus Curiae
Kiarra Nastazsa Adrienne A. Cabile

Posted on May 05, 2016

In January 2016, the Senate approved Senate Bill No. 2981 (SB 2981) or the Expanded Maternity Leave Law of 2015 on its third and final reading. Under the bill, the duration of maternity leave for female employees in government service and in the private sector will be extended to one hundred (100) days, regardless of mode of delivery. Mothers around the country have lauded the bill yet some have expressed fears on the repercussions of the same.

At present, the maternity leave provided under the Section 14-A of Republic Act 1161, as amended, otherwise known as the Social Security Act of 1997, provides that a female employee shall be paid a daily maternity benefit equivalent to one hundred percent (100%) of her average daily salary credit for sixty (60) days or seventy-eight (78) days in case of caesarian delivery.

It should be noted that the International Labour Organization (ILO), specifically the Maternity Protection Convention (Convention 183) prescribes for fourteen (14) weeks or ninety-eight (98) days of maternity benefits. Evidently, the maternity leave provided for in our country is less than the minimum provided under Convention 183.

Comparing with the other ASEAN countries, the Philippines is one of the countries with the least number of maternity leaves granted. Vietnam is the highest granting about one hundred twenty (120) to one hundred eighty (180) days of maternity leave, while Singapore, provides one hundred and twelve (112) days of maternity leave. Cambodia, Indonesia, Laos, Myanmar, and Thailand all provide a maternity leave period of ninety (90) days. Only Malaysia and Brunei provide for a sixty (60) day maternity leave similar to the Philippines.

Aside from extending the maternity leave to one hundred (100) days regardless of mode of delivery, the bill also provides for an additional maternity leave of thirty (30) days without pay provided that due notice, in writing, be given to the employer at least forty-five (45) days before the end of the maternity leave.

Moreover, the bill, in compliance with ILO Convention 183 provides that “employees availing of the maternity leave period and benefits must receive not less than two-thirds (2/3) of their regular monthly wages.” The bill also mandates that employers from the private sector shall be responsible to pay the salary differential between the actual cash benefits received from the SSS by the covered employees and their average weekly or regular wages, for the entire duration of the ordinary maternity leave.

The aim of the bill to provide for greater benefits for pregnant women is consistent with the mandate under our Constitution, particularly Article XIII Section 14, to “protect working women by providing safe and healthful working conditions, taking into account their maternal functions.”

And yet, it is unavoidable that some fear that the expanded maternity leave will in fact cause possible discrimination in terms of employment against women. These apprehensions are brought about by the idea that the employers, particularly small businesses, would feel burdened particularly since there is now a mandate that the employers will be responsible for the salary differential between the SSS grant and what is mandated under the bill.

Understandably, such fears are justified.

It may be worthy to point out, however, that to temper the added responsibility to employers, the bill exempts certain employers or establishments from the payment of the differential. Among them are distressed establishments, retail/service establishments employing not more than ten (10) employees, those who pay their workers on a purely commission or task-basis and micro-businesses or those whose total assets are not more than three (3) million pesos.

Moreover, it must be noted that the Labor Code of the Philippines provides for the protection of women employees against discrimination. Article 135 states that it shall be unlawful for any employer to discriminate against any woman employee with respect to terms and conditions of employment solely on account of her sex. Discrimination may be in the form of lesser compensation to a female employee as against a male employee, for work of equal value, or in favoring a male employee over a female employee with respect to promotion, training opportunities, study and scholarship grants solely on account of their sexes. Article 137, in addition, provides that it shall be unlawful to discharge a woman on account of her pregnancy, or while on leave or in confinement due to her pregnancy. It is likewise unlawful to discharge or refuse the admission of a woman employee upon returning to her work for fear that she may again be pregnant.

Despite all these safeguards, it is still apt to recognize that there is, however, a risk that the discrimination may happen prior to being employed.

To avoid the additional costs, the employer may opt to give preferential treatment to male applicants. Such discrimination may be harder to perceive as employers are given the prerogative to set qualifications and standards by which to select their employees. Unless there is a blatant show of discrimination in the hiring of only or mostly male employees, it will be harder to draw the line between management prerogative and actual discrimination.

Hence, should the maternity leave in our country be increased to one hundred (100) days, our government is faced with the duty to ensure that the same will not cause discrimination against women in all stages of employment. Otherwise, the benefits envisioned may be outweighed by the harm.

The views and opinions expressed in this article are those of the author. This article is for general informational and educational purposes only and not offered as and does not constitute legal advice or legal opinion.

Kiarra Nastazsa Adrienne A. Cabile is an Associate of the Angara Abello Concepcion Regala & Cruz Law Offices (ACCRALAW).

(632) 830-8000