Maternity and Paternity License 2020: What does the employment contract law say

The extension of legal licenses for maternity and paternity is a claim from several sectors of society, and even the feminist movement in Argentina.But for the moment, this benefit is still tied to what the Labor Contract Law says (No. 20.744).

In many countries and also in Argentina, multinational.

Under different modalities, some of those already have in the country these types of policies are:

To define this type of policies, not only their appeal is taken into account to attract the best talents.

The aforementioned companies claim.

The benefit it has for the development of the infant is also recognized and attended by their loved ones at this early stage.

But none of this is still contemplated in the Labor Contract Law (LCT) that governs in 2020 in Argentina, and that establishes important differences between new parents, while still unknown increasingly common cases, such as those ofadoption.

Nor do independent formal workers (non -social and autonomous monotributistas) and informal workers access the paternity license benefits) and informal workers.

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President Alberto Fernández recently expressed his desire to modify the law in terms of maternity and paternity licenses, but it is still pending matter.

What does the work contract law say on maternity licenses?

Cuánto tiempo de licencia tienen por ley las madres trabajadoras en la Argentina

Article 177 of the LCT specifically establishes the prohibition of working of female personnel in gravity during the 45 days prior to the probable delivery date, and 45 days after birth.However, the article continues to express that "the interested party may choose to reduce the license prior to childbirth, which in this case may not be less than 30 days; the rest of the total license period will accumulate the subsequent rest periodto childbirth ".

The law considers this period as a license, which must be understood as "non -periodic interruption of the employment relationship".This interruption implies a suspension of some normal effects of the employment relationship, which in this case would be specifically that of the provision of services.

This means that during that period of three months of license, the employer does not pay the remuneration to the worker but that social security systems do, through a "pregnancy assignment".

In case of preterm birth, "the entire license period that would not have been enjoyed before delivery will be accumulated to the subsequent rest, in order to complete the ninety days".And if the delivery happens after the presumed date, the previous rest must be prolonged until the date of delivery and the postpartum rest is not reduced.

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On the other hand, the LCT ensures the job stability of the pregnant woman.The second paragraph of article 177 provides that "the worker will keep her employment during the indicated periods, and will enjoy the assignments conferred by the Social Security systems, which will guarantee to it the perception of a sum equal to the remuneration that corresponds to theLegal license period, all in accordance with the requirements and other requirements that provide for the respective regulations ".

In other words.

The regulations do not establish the nullity of the dismissal of the pregnant woman, but it provides that when the dismissal is due to reasons of maternity or pregnancy, the provisions of article 182 of the LCT shall apply, that is, the right of the employee to become creditorof compensation for seniority, in accordance with the provisions of article 245 of the LCT, accumulated to the special compensation of one year of remuneration.

To operate the stability in employment, the worker has to comply with two obligations: on the one hand, to communicate in a reliably communicate her pregnancy, and on the other hand, to present a medical certificate in which the date is recordedProbable of delivery.

In the event that the worker, once the period of prohibition to work is finished, can make an express option for the termination of the employment relationship, through reliable communication, before 48 hours after the end of the maternity period.

However, if the employer defines the dismissal of the employee, who has correctly notified him (preferably in writing) of his pregnancy and presented the medical certificate, it is presumed, except proof to the contrary, that the "dismissal obeys reasons of maternity or maternitypregnancy when it was arranged within seven and a half months before or after the date of delivery ".

In other words.The purpose is to discourage the dismissal of the worker during pregnancy and the first months after the birth, reinforcing the stability that is intended to be guaranteed with the third paragraph of article 177 of the LCT.

The protection of article 178 of the LCT is also applicable to the case of indirect dismissal, since otherwise the employer would place the worker in condition of having to endure any injury during that period: the employer who intends to exempt from its effects must accreditthat the dismissal was motivated in another cause.

If the employer dismisses the worker in the period set by article 178 of the LCT and does not show that there was just cause - that is that the dismissal responded to a cause outside of pregnancy or motherhood - must pay an aggravated compensation ".This compensation is equivalent to one year of remuneration plus the SAC and compensation that corresponds to it for dismissal without just cause.

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What does the labor contract law say on paternity licenses?

¿Qué dice la Ley de Contrato de Trabajo sobre licencias por paternidad

The new male gender parents correspond by law two days of paternity paid license, which are the two immediately consecutive to birth, according to article 172 of the LCT.The license is pay and the costs are in charge of the employer.

While there are collective work agreements that extend the number of permission for workers, it is not an extended modality in most activities.For example, these provisions are not applicable to public, domestic and agricultural workers.The Agrarian Labor Law recognizes a paternity license pays 30 days.

This does not present only a resounding inequality in terms of the rights that working mothers receive but also in practice, it usually implies that men by becoming parents must use their vacation days to adapt the arrival of a new member of the family.

Nor does the LCT contemplate paternity licenses in cases of adoption, it does not extend to egalitarian marriages or couples of the same gender, it does not contemplate exceptions for cases of disease or health complications, etc..

Although there are multiple bills and several legislators of various political forces demonstrated in favor of the extension of licenses, the treatment or the complete sanction of any of them was not achieved.Only some provinces and the city of Buenos Aires extended the number of days to public employees.

The Collective Labor Agreement (CCT) regulates employment in the National Public Administration has 100 days of license for the mother and 5 business days for the father.Provincial and municipal public employees, on the other hand, are subject to jurisdictional laws, which vary greatly in the coverage of days.Some economic sectors (through the collective agreements that regulate the activity) negotiated extensions in the deadlines recognized by the LCT.

In the public sector, in Córdoba and Santa Fe, parents can take eight days before the birth of a child, while this period extends to 10 days for La Pampa, CABA and Neuquén.

Coparantality is fostered to a greater extent in the rest of the provinces.Chaco, Río Negro, Santa Cruz and Tucumán give the parents 15 days running license and in Salta and San Luis is 20 days.Public employees of La Rioja have 30 days.

In the city of Buenos Aires, the father can take up to 75 days run after childbirth, if both parents work for the Buenos Aires government.Last year, the paternity license went to 15 days, plus another 30 (runs and paid) that the person can take during the first year of the baby's life.

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