Maternity leave, flexible working hours & the EU
"An employer may not give notice of termination or terminate a contract of employment during pregnancy and during maternity leave of an employee..." - Art. 177 (1) Polish Labour Code.
Currently, my wife Elizabeth is on maternity leave, following the birth of our first child, Matthew, on January 23, 2004. According to Art. 180 of the Polish Labour Code, Elizabeth is entitled to 16 weeks paid maternity leave following the birth of Matthew, which means that she will not have to return to work till the end of May. If and when we decide to have a second child some time in the future, Elizabeth will be entitled to 18 weeks of paid maternity leave. If by chance she were to give birth to twins (or triplets, quadruplets, etc...), the amount of maternity leave would be extended to 26 weeks. I, on the other hand, am only entitled to take 'maternity' leave in the event of Elizabeth's death or incapacity. Elizabeth does, however, retain the option to transfer her last two weeks of maternity leave to me, but she has already informed me that I can forget that pipe dream. If we were to decide to adopt, Elizabeth would be entitled to either 8 or 16 weeks of paid maternity leave, depending on the age of the child.
Will these rights, afforded to new parents, be scaled back following accession to the EU? No. In fact, the number of rights and protections afforded to pregnant employees and parents raising small children may be broadened following accession, if recent recommendations made by the European Commission are adopted. In its recent Communication, issued on December 12, 2003, the Commission recommended a review of Directive 93/104/EC regarding working time, most notably to ensure more flexible working time arrangements "to make it easier to reconcile work and family life." Directive 93/104/EC provides for a common set of minimum standards to be adhered to by the member states, such as ensuring that the number of hours worked in a seven day period, including overtime, does not exceed 48 hours. Moreover, EU regulations permit Poland and other member states to "apply or introduce laws, regulations or administrative provisions more favourable to the protection of the safety and health of workers."
What other protections does Elizabeth have under the Polish Labour Code? Plenty. For instance, during pregnancy and maternity leave, Elizabeth's employer cannot fire her, unless with cause or due to her employer declaring bankruptcy. My job, in contrast, is not protected during maternity leave, unless I were to become the sole caregiver of Matthew. Additionally, during her pregnancy, Elizabeth was not required to work overtime or to work at night (per Art. 178). In reality, Elizabeth's employer was very generous and permitted her to leave work early. Once Elizabeth returns to work, she will similarly not be legally required to work overtime, at night, or in conditions that could adversely affect her health or the health of our child without her consent until such time as Matthew reaches the age of four. Moreover, if Elizabeth continues to breast-feed once she returns to work, she will be entitled to take two 30-minute breaks included in her work time, assuming she continues to work full-time.
Additionally, up until the point in time that Matthew reaches age four, Elizabeth may opt to take up to three years of upbringing leave, but in this case, such time off will be at my expense and not at the expense of social security contributions (ZUS) or her employer. Following the expiration of upbringing leave, the employer will, per Art. 186 of the Labour Code, be required to reinstate Elizabeth to "her previous post, and if that is impossible, to a position of equal status (same amount of income)." Alternatively, Elizabeth may ask that her working hours be reduced to as little as half her normal work schedule during this three year period in which she could have taken upbringing leave, and her employer would be required to accept. I, as the father, may also take upbringing leave under the same terms and conditions as Elizabeth, but not at the same time as Elizabeth, except for up to three months when we may both take such leave simultaneously. The right to take up to three years upbringing leave is only contingent upon Elizabeth having worked a total of six months prior to requesting such leave, including credit for prior periods of employment. (Just in case either of our employers reads this article, neither one of us is planning to exercise this right.) Additionally, up until the point in time when Matthew reaches age 14, either Elizabeth or I may take up to two additional days off with pay per year for child-rearing purposes.
With respect to enforcement of these regulations and the imposition of penalties, Art. 281 of the Labour Code stipulates that "any employer who ...infringes the provisions of law on working time or an employee's rights connected with parenthood" shall be subject to a monetary fine, the amount of which is determined by the severity of the violation and the discretion of the Labour Court.
And one final note to Elizabeth's employer: Elizabeth intends to return to work at the end of her maternity leave. So please, don't worry.
Paul Fogo is a senior attorney with Miller, Canfield, W. Babicki & Partners
Currently, my wife Elizabeth is on maternity leave, following the birth of our first child, Matthew, on January 23, 2004. According to Art. 180 of the Polish Labour Code, Elizabeth is entitled to 16 weeks paid maternity leave following the birth of Matthew, which means that she will not have to return to work till the end of May. If and when we decide to have a second child some time in the future, Elizabeth will be entitled to 18 weeks of paid maternity leave. If by chance she were to give birth to twins (or triplets, quadruplets, etc...), the amount of maternity leave would be extended to 26 weeks. I, on the other hand, am only entitled to take 'maternity' leave in the event of Elizabeth's death or incapacity. Elizabeth does, however, retain the option to transfer her last two weeks of maternity leave to me, but she has already informed me that I can forget that pipe dream. If we were to decide to adopt, Elizabeth would be entitled to either 8 or 16 weeks of paid maternity leave, depending on the age of the child.
Will these rights, afforded to new parents, be scaled back following accession to the EU? No. In fact, the number of rights and protections afforded to pregnant employees and parents raising small children may be broadened following accession, if recent recommendations made by the European Commission are adopted. In its recent Communication, issued on December 12, 2003, the Commission recommended a review of Directive 93/104/EC regarding working time, most notably to ensure more flexible working time arrangements "to make it easier to reconcile work and family life." Directive 93/104/EC provides for a common set of minimum standards to be adhered to by the member states, such as ensuring that the number of hours worked in a seven day period, including overtime, does not exceed 48 hours. Moreover, EU regulations permit Poland and other member states to "apply or introduce laws, regulations or administrative provisions more favourable to the protection of the safety and health of workers."
What other protections does Elizabeth have under the Polish Labour Code? Plenty. For instance, during pregnancy and maternity leave, Elizabeth's employer cannot fire her, unless with cause or due to her employer declaring bankruptcy. My job, in contrast, is not protected during maternity leave, unless I were to become the sole caregiver of Matthew. Additionally, during her pregnancy, Elizabeth was not required to work overtime or to work at night (per Art. 178). In reality, Elizabeth's employer was very generous and permitted her to leave work early. Once Elizabeth returns to work, she will similarly not be legally required to work overtime, at night, or in conditions that could adversely affect her health or the health of our child without her consent until such time as Matthew reaches the age of four. Moreover, if Elizabeth continues to breast-feed once she returns to work, she will be entitled to take two 30-minute breaks included in her work time, assuming she continues to work full-time.
Additionally, up until the point in time that Matthew reaches age four, Elizabeth may opt to take up to three years of upbringing leave, but in this case, such time off will be at my expense and not at the expense of social security contributions (ZUS) or her employer. Following the expiration of upbringing leave, the employer will, per Art. 186 of the Labour Code, be required to reinstate Elizabeth to "her previous post, and if that is impossible, to a position of equal status (same amount of income)." Alternatively, Elizabeth may ask that her working hours be reduced to as little as half her normal work schedule during this three year period in which she could have taken upbringing leave, and her employer would be required to accept. I, as the father, may also take upbringing leave under the same terms and conditions as Elizabeth, but not at the same time as Elizabeth, except for up to three months when we may both take such leave simultaneously. The right to take up to three years upbringing leave is only contingent upon Elizabeth having worked a total of six months prior to requesting such leave, including credit for prior periods of employment. (Just in case either of our employers reads this article, neither one of us is planning to exercise this right.) Additionally, up until the point in time when Matthew reaches age 14, either Elizabeth or I may take up to two additional days off with pay per year for child-rearing purposes.
With respect to enforcement of these regulations and the imposition of penalties, Art. 281 of the Labour Code stipulates that "any employer who ...infringes the provisions of law on working time or an employee's rights connected with parenthood" shall be subject to a monetary fine, the amount of which is determined by the severity of the violation and the discretion of the Labour Court.
And one final note to Elizabeth's employer: Elizabeth intends to return to work at the end of her maternity leave. So please, don't worry.
Paul Fogo is a senior attorney with Miller, Canfield, W. Babicki & Partners
