Fabian Demicoli

Maternity and Parental leave


EU Directive 92/85/EEC safeguards the rights of workers who are pregnant or have recently given
birth as well as women who are breastfeeding. Moreover, the Directive covers
maternity leave and discrimination in the workplace. EU Member States are
required to abide by a number of rules, namely:

–    To
ensure that pregnant women are not obligated to carry out night work; subject
to the submission of a medical certificate, this also applies to women who had
very recently given birth. In such cases, women should either be transferred to
work during the daytime or be excused from work.

–    Maternity
leave must last for an uninterrupted period of minimum 14 weeks before and/or
after delivery. Additionally, maternity leave must be granted for at least two
weeks before delivery.

–    Pregnant
workers are allowed to take leave from work in order to attend antenatal
examinations during working hours without loss of pay.

–    Employers
cannot dismiss pregnant workers due to their condition from the beginning of
their pregnancy till the completion of their maternity leave. Pregnant workers
are protected from the ramifications of unlawful dismissal and thus employers
are required to provide appropriate reasons in writing if they feel a dismissal
is absolutely necessary.

To ensure that
workers' employment rights are safeguarded. This involves employment contracts,
and particularly the maintenance of payment and entitlement to proper
allowance.In Malta the law goes further whereby an extra 4 weeks are being
awarded. Therefore a pregnant employee may apply for maternity leave for an
uninterrupted period of eighteen weeks which is availed of as to (a) six weeks
of the maternity leave entitlement to be taken compulsorily immediately after
the date of birth; (b) four weeks of maternity leave to be availed of
immediately before the expected date of birth, unless agreed otherwise between
the employer and the employee. While the 14 weeks required by the Directive are
covered by the employer, the additional 4 weeks are covered by the Government.

This Directive
is also an initiative that encourages further gender equality at the workplace.
In a 2009 Commission report on equality between men and women [COM(2009) 77
final], it was highlighted that too many women were employed in part-time jobs,
and although 58.9% of qualifications in the EU are obtained by women, these
qualifications do not generally translate into high enough career paths. The
report also conveys the fact that the sharing of family responsibilities
remains unequal, with employment rate of women with children falling by 12.4
percentage points whilst in the same situation that of men increases by 7.3
points. Other initiatives have been made; for instance, the EU-funded Nistá – Sharing
Work-Life Responsibilities Campaign in Malta which promotes a balance between
work and family life.

EU Directive 2010/18/EU formulates the minimum requirements on parental leave and time off from
work. Through this Directive, workers are permitted parental leave on the birth
or adoption of a child. Parental leave is the right of workers of both sexes to
be granted unpaid parental leave so as to take care of a child. Maltese law
does not cater specifically for paternity leave, however in terms of the
Parental Leave Regulations  and the
Minimum Special Leave Entitlement Regulations fathers are entitled to 1 paid
day of birth leave and parental unpaid leave of up to 4 months (availed of in
periods of one month each) until the child has attained the age of 8
yearsPublic officers are granted a maximum of one year unpaid parental leave
per child.. This Directive applies to all workers – both men and women – and at
least one of the four months of parental leave that are granted cannot be
transferred from the father to the mother, or vice-versa. Upon the completion
of the duration of parental leave, workers must have the right to resume work
in the same job, or an equivalent occupation. For a limited period, these
workers also have the right to request a change in their working hours.

Workers that
want to take maternity leave or parental leave are required to notify the
employer in advance. The period of notice depends on the Member State, where
the interests of both employers and workers must be protected. In the case of
Malta, employees who apply for maternity leave must notify the employer at
least four weeks before the maternity leave commences.

Back in 2010,
the European Parliament had voted on the European Commission's 2008 proposal to
reform the 1992 Maternity Leave Directive, where the Commission made a proposal
for an increase in the minimum  period of
maternity leave from 14 to 18 weeks with a full payment of womens' salary
during this period. However, the European Parliament had wanted to provide
women with a minimum of 20 weeks maternity leave with full pay whilst
introducing two weeks of paternity leave (also with full pay). Of course, it is
worth pointing out that the European Commission would represent the interests
of all 28 Member States, while the European Parliament represents the European
citizens residing in these Member States. Negotiations are still underway, with
the Council and European Parliament disagreeing on the reform, however the
European Parliament has since appeared willing to make a compromise and depart
somewhat from its ambitious demands. The European Parliament's rapporteur on
this Directive, MEP Edite Estrela, has made claims that society would
definitely benefit from an improved maternity leave without any negative
consequences on the economy.

Emerging
reproductive technologies are paving the way towards new conceptions of
"family", and this also has particular implications on who is entitled to
certain benefits. Interesting developments have been occurring in the EU where,
in September 2013, a British woman who had a baby through a surrogate mother
was deemed by the European Court of Justice to be entitled to be paid maternity
leave. Such a legal opinion could allow other parents around the UK and the EU
to attain similar benefits. Advocate General Juliane Kokott said that even if
the child is not breastfed by the legal guardian, the legal mother still "has
the right to receive maternity leave provided for under EU law after the birth
of the child in any event where she takes the child into her care following
birth." Fascinatingly, she also states that if the woman who gives birth to the
child wishes to also take maternity leave, that leave must be subtracted from
the maternity leave taken by the mother who is now the legal guardian.

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