The Department of Labor and Employment (DOLE), together with the Social Security System (SSS) and the Civil Service Commission (CSC), recently laid out the Implementing Rules of the newly-minted Expanded Maternity Leave Law, although the law itself already became effective last March 11, 2019.
Women in the private and public sector now enjoy a total of 105 days paid maternity leave benefit for live childbirth, regardless of the mode of delivery. In addition, women workers in the informal economy and national athletes are now explicitly recognized as being entitled to maternity leave benefits. The law also grants an additional 15 days paid leave if the female worker qualifies as a solo parent under the Solo Parents’ Welfare Act of 2000.
Notably, the law increased the daily maternity leave benefit to 105 days with full pay (a considerable increase from the initial 60 days, or 78 in case of caesarian delivery), regardless of the frequency of pregnancy. However, for miscarriage or emergency termination of pregnancy, the law provides 60 days maternity leave with full pay.
Covered employees also have the option of availing an additional maternity leave of 30 days without pay upon written notice at least 45 days before the end of her maternity leave.
At her option, a covered employee may allocate up to 7 days of her maternity leave benefits to the child’s father, regardless if they are married. In the death, absence, or incapacity of the child’s father, the female worker may allocate the same benefits to an alternate caregiver.
Improvements in workers’ benefits are always welcome, yet employers and employees alike are confused on how to smoothly effect a transition from the old provisions to the new. Understandably, there remains a fundamental issue not resolved by the implementing rules.
Under the old rules, an employee must notify either her employer (in case of the private sector), head of agency (in case of the public sector), or the SSS directly (in case of unemployed, self-employed, and voluntary paying members), immediately after becoming pregnant. Her failure to notify may be considered a ground for the employer to deny her application or to deny advancing her benefit. But said employee is not completely without relief; alternatively, she can directly reimburse the amount which the employer would have advanced with the SSS or the Government Service Insurance System (GSIS). The same policy is reiterated in the new implementing rules, wherein failure to notify the employer shall not bar the employee from receiving the maternity benefits, subject to guidelines to be prescribed by the SSS.
It is therefore crucial that the reckoning point of the law’s effectivity be clearly established for the guidance of all who claim to benefit. What then should be the reckoning point? Should it be upon notice to the employer? Upon a worker’s discovery of her pregnancy? Or upon childbirth?
In theory, the simplest answer is that the law should apply prospectively to all female employees upon notice to their employers beginning March 11, 2019.
Nonetheless, employers are faced with the predicament of dealing with employees who became pregnant during the effectivity of the old law but failed to notify their employer of such pregnancy, because they seem to be better off than those who were diligent enough to give due notice.
Consider this: Employee A, who becomes pregnant during the effectivity of the old law, is obliged to notify her employer; however, she does not do so. Afterwards, the new law is passed. If she thereafter notifies her employer, she will enjoy the benefits under the Expanded Maternity Leave Law.
On the other hand, Employee B becomes pregnant and notifies her employer of the same, during the effectivity of the old law. Thus, she is already enjoying the benefits under the old law, which is capped at 60/78 days. Afterwards, the new law is passed. Since the employee already claimed the benefits granted under the previous law, is she now barred from claiming under the new law?
The situation creates an inherent inequality in applying the law, wherein Employee A enjoys a better benefit (an additional 45 days, give or take) than Employee B, even if the two employees became pregnant at around the same time. The brunt of this disparity will be felt over the next several months not the least by government agencies and employers, who will be advancing the maternity benefits of their employees.
It seems that the source of conflict is the wide latitude given to a female employee in notifying her employer — anytime from the moment she becomes pregnant, until after she gives birth to the child. In any case, the implementing rules are merely a few days old; thus, claimants may expect more guidelines that will rectify any further ambiguities that arise as the law begins to be implemented.
The views and opinions expressed in this article are those of the author. This article is for general informational and educational purposes, and not offered as, and does not constitute, legal advice or legal opinion.
Rhett D. Gaerlan is an Associate of the Labor and Employment Department of the Angara Abello Concepcion Regala & Cruz Law Offices.