Maternity Leave

Maternity leave is an important achievement, contributing to the healthy development of both the child and the mother, and even contributing to the employee's productive return to work after this period. In this article, we will attempt to understand the most relevant aspects of this topic, seeking to unravel its operation, duration, entitlements, and more.

The 1988 Federal Constitution already enshrines maternity protection as a priority of the State in its Article 5. To ensure this, Article 201 establishes that social security must guarantee maternity protection, especially for pregnant women.

Thus, implementing the premises established in the Federal Constitution, Article 392 of the CLT determines that a pregnant employee who has given birth to or adopted a child under 12 (twelve) years of age will be entitled to 120 (one hundred and twenty) days of maternity leave. During this period, the employee will not receive her salary, but will be granted a social security benefit called maternity pay.

The employee must, by means of a medical certificate, notify the employer of the date on which the leave from work begins, which may occur between the 28th day before the birth and the birth itself.

In this sense, despite not paying the employee's salary during this period, the employer must pay the 13th salary in full; will make the FGTS collection normally; in addition to computing the vacation time regularly.

In the event of the mother's death as a result of childbirth or pregnancy, the father will be entitled to maternity leave for the same period of 120 days, under the same rules as the woman. Another situation that normally gives rise to the granting of maternity leave benefits is the stillbirth of the baby, as per Article 343 of Normative Instruction No. 77 of the INSS.

Furthermore, it should also be noted that in cases of non-criminal abortion, the employee will be entitled to maternity pay corresponding to two weeks. Depending on the case, the rest periods may be increased by up to two weeks upon presentation of a medical certificate.

Created by Law No. 11,770/2008 and regulated by Decree No. 7,052/2009, the Citizen Company Program extends maternity leave by up to 60 (sixty) days and paternity leave by 15 (fifteen) days, in addition to the 5 (five) days already established. This extension will only be granted to companies that have previously joined the Program, provided that it is requested by the end of the first month after the employee's birth.

The extension of the maternity leave period will be 60 (sixty) days, in the case of a child up to 1 (one) year of age; 30 (thirty) days, in the case of a child from 1 (one) to 4 (four) years of age; and 15 (fifteen) days, in the case of a child from 4 (four) years of age up to 8 (eight) years of age.

As already explained here on the website (Can a pregnant woman be fired?) the legislation guarantees temporary stability for pregnant women from the confirmation of pregnancy until 5 months after birth, and during this period there can be no arbitrary or unjustified dismissal.

The reason for the existence of such stability is to prevent pregnancy from becoming a cause of discrimination against the employee, guaranteeing the continuity of the employment relationship, as well as ensuring the support of the unborn child and the family.

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