Authored by Gil Roberto Zerrudo, Kenneth Chua, Eliseo Zuñiga, Jr. and Joyce Chan

Recent Developments
 
A new law was recently enacted to protect and promote the rights and welfare of women in due consideration of their maternal function. Republic Act No. 11210 (RA 11210), also known as the 105-Day Expanded Maternity Leave Law, grants increased maternity leave benefit to eligible employees. Subsequently, the Department of Labor and Employment (DOLE), Social Security System (SSS), and the Civil Service Commission of the Philippines jointly issued the Implementing Rules and Regulations of RA 11210 (Rules). According to the SSS, the benefits of RA 11210 are available to eligible female employees in the private sector who give birth or suffer miscarriage or emergency termination of pregnancy on or after 11 March 2019.
 
What the law says
 
Under RA 11210, the expanded maternity benefits are as follows:
  1. Maternity leave of 105 days with full pay, whether the eligible female employee gives birth via caesarian section or natural delivery.
  2. Maternity leave of 60 days with full pay in cases of miscarriages (i.e., pregnancy loss before the 20th week of gestation) or emergency termination of pregnancy (i.e., pregnancy loss on or after the 20th week of gestation and includes stillbirth).
  3. Allocation of 7 days of maternity leave credits to the child’s father or an alternate caregiver.
  4. Additional maternity leave of 30 days without pay in case of live childbirth provided a written notice to the employer is given at least 45 days before the end of her maternity leave. In case of a medical emergency, prior notice is excepted but subsequent notice is required.
  5. Additional maternity leave of 15 days with full pay in case the eligible female employee is also a solo parent as defined under Republic Act No. 8972.
  6. Female workers with pending administrative cases are entitled to the maternity leave benefits.
  7. Post-termination maternity leave entitlement (i.e., in case the qualifying event occurs not more than 15 calendar days after termination of employment), except in cases of illegal dismissal.
  8. Non-diminution of existing benefits including alternative working arrangements validly agreed upon and non-discrimination of female workers.
  9. Security of tenure except in instances of transfer or reassignment within the same enterprise provided there is no reduction in rank, status, salary or otherwise amount to constructive dismissal.
The expanded maternity benefits apply regardless of female worker’s employment status, civil status and legitimacy of her child, and frequency of pregnancy.

Maternity leave benefits should be availed by the eligible female worker either before or after the actual period of delivery in a continuous and uninterrupted manner. Maternity leave can be used as combinations of prenatal and postnatal leave provided that postnatal care shall not be less than 60 days.
 
In cases of live births, maternity leaves credits of 7 days may be allocated to the following:
  1. child’s father, whether or not married to the female worker; or
  2. upon election of the mother taking into account the best interest of the child, an alternate caregiver in case of death, absence, or incapacity of the child father who can be either. 
                 a) a relative within the fourth degree of consanguinity; or
                 b) the current partner, regardless of sexual orientation or gender identity, of the female worker sharing the same household.

The female worker shall notify her employer of her option to allocate with her application for maternity leave. Likewise, the child’s father or the alternate caregiver shall notify his/her employer of the allocated leave and the inclusive dates.
 
Implications for the employers 
 
Because the maternity benefit is now 105 days with full pay, employers have the statutory obligation to pay the difference between what the SSS will shoulder as maternity benefit and the usual salary of the female employees, unless they are exempted because of their business situations.

Full pay is defined in the Rules as “actual 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 allowances provided for under existing company policy or collective bargaining agreement, if any”. The Rules provide that employed female workers shall receive full pay which consists of (i) SSS maternity benefit computed based on their average daily salary credit, and (ii) salary differential to be paid by the employer, if any.

The exempt establishments and enterprises are:
  1. distressed establishments
  2. retail/service establishments and other enterprises employing not more than 10 workers
  3. micro-business enterprises and engaged in the production, processing or manufacturing of products or commodities including agro-processing, trading and services, whose total assets are not more that PhP 3,000,000 in accordance with the Barangay Micro Business Enterprises Act of 2002; and
  4. enterprises already providing similar or more than the benefits provided in RA 11210.
The exempt establishments and enterprises should annually submit proofs and other necessary documents for the approval of DOLE.

In this connection, employers who fail or refuse to comply shall be punished by a (1) fine of PhP 20,000 to PhP 200,000 and (2) imprisonment of 6 years and 1 day to 12 years, or (3) both, at the discretion of the court. In case the act or omission is committed by a corporation, the penalty shall be imposed on the its managing head or directors.

Failure of the corporation or enterprise to comply with RA 11210 shall also be a ground for non-renewal of business permits.
 
Actions to consider
 
Employers should familiarize themselves with the eligibility conditions under the law. The obligations of an employer arise when a female employee meets all the eligibility and notification requirements. Employer is also recommended to audit its existing maternity leave policies. It should verify whether it is an exempt establishment, and if not, align its existing policies with the new requirements under RA 11210. It may likewise set-up administrative mechanisms to ensure smooth implementation of its obligations (e.g., documentation for allocation of maternity leave credits).