On 17 June 2013, the Act on Amending the Labour Code and Certain Other Acts of 28 May 2013 (Journal of Laws, item 675) became effective. The Act amends inter alia the provisions of the Labour Code regarding the maternity leave, additional maternity leave, additional leave on terms of the maternity leave, and parental leave, and the provisions of the Act on Monetary Social Security Benefits in Case of Illness and Maternity of 25 June 1999 with regard to the maternity benefit. This paper examines the above amendments above all in terms of the new obligations imposed on employers.
Following the amendment, employers are above all required to correctly assess the duration of the maternity and parental leave each employee is entitled to. Under the amendments, the duration of the leave is up to 52 weeks in the case of a single birth and from 65 to 71 weeks in the case of a multiple birth. This duration became possible by extending the duration of the additional maternity leave (and of the additional leave on terms of the maternity leave) by two weeks and the introduction of a new parental leave of 26 weeks. The parental leave is granted for a period of 26 weeks regardless of the number of births. The employer grants the leave at a written request of the employee, however, it is required to verify whether the duration of the leave requested for by the employee is correct and whether the request has been submitted within the prescribed period. Under the amended law, the additional maternity and paternity leave are granted based on two separate requests, each submitted within a period of at least 14 days prior to the start of the leave, or based on a single request for both the leaves, submitted no later than 14 days after giving birth. If the deadline is not met, the employer may refuse to grant the leave.
The situation is slightly different in the case of the parental leave. This leave is available not only to the mothers but also to the fathers, either in its entirety or by being split between the parents. The leave can be split into no more than three sections of at least 8 weeks each. The actual allocation of the leave sections between the parents is up to them, and the employer can refuse to grant the parental leave if the employee requests the leave for a shorter period than 8 weeks. It is a novelty that the employer may refuse to authorise the employee to take up work during the additional maternity or paternity leave. The employer may not authorise such work if the same is not possible given the organisation of work or the type of work performed by the employee.
A significant modification of the previous regulations also relates to the rate of the maternity benefit. As a reminder, the amount of the maternity leave benefit is assessed relative to the average pay received by the employee over the last 12 calendar months. As of 17 June, employers are required to apply several percentages to calculate the amount of the benefit. The percentage depends on the time when the mother states which leaves she intends to request. Prior to the effective date of the amendments, the maternity leave (and the additional maternity leave) benefit had stood at 100% of the benefit assessment basis. Under the amended law, the benefit payable throughout the term of the parental leave is 60% of the benefit assessment basis unless the employee submits to the employer, still prior to giving birth, a request for the additional maternity leave to be granted to her immediately after the expiry of the maternity leave and the parental leave straight after it. Under such circumstances, the employee will receive a benefit of 80% of the benefit assessment basis. It is also worth noting that the employee who submits a request for parental leave prior to giving birth may decide not to take it at all. In such a case, she must be compensated with respect to the maternity benefit for the period of the maternity leave and the additional maternity leave up to 100% of the benefit assessment basis. However, if the employee decides to take both the maternity leave and the additional maternity leave, then the rate of the benefit is 60% of the benefit assessment basis.
The new regulations apply to parents whose children were born after 31 December 2012 and who took a foster child after 31 December 2012 of up to seven years of age and, where the child’s compulsory education has been deferred, of up to 10 years of age and filed with the guardianship court for institution of the child’s adoption proceedings or took a child as a foster family (other than a professional foster family).