Understanding the finer points of maternity-leave law
It's not easy balancing both career and family in today's fast-paced world, particularly for couples with young children or those considering starting a family. Justified or not, there is a perception that it is more difficult for a young woman to find a job because potential employers fear that she will decide to have children and take maternity leave. In many ways, the perceived entitlements of pregnant women and new mothers have grown to epic proportions. In an attempt to dispel some of the myths (or perhaps confirm some of your worst fears), let us have a look at the protections granted to expectant and new mothers under Polish labor law and the relevant obligations of employers.
The labor code and regulations promulgated thereunder aim to protect women during pregnancy and contain detailed provisions on working conditions, working hours and the continuity of employment. Many of these provisions are strictly binding and may not be waived by the employee.
Numerous legal provisions specify certain types of jobs that women may not do and other occupational limitations that apply to pregnant women. In general, women may not be employed to do certain jobs that are deemed excessively arduous or noxious. When a woman is expecting, her employer must inform her about the occupational risks, if any, connected with performing her present job during pregnancy.
If the job held by a woman involves a type of work that may not be performed during pregnancy, the employer must assign the expectant mother other tasks. This obligation also arises when the pregnant employee holds a medical document stating that she must not perform her present work due to her pregnancy. In both cases, a transfer is obligatory, regardless of the employer's business structure or actual possibility to make this transfer. If the employer cannot assign another job to the employee, he must exempt her from performing her present work, but still pay her wages. If a transfer to another position would normally involve a pay cut, the employee is entitled to receive a compensatory allowance.
In addition to job-related risks, the law places restrictions on the time and place of work. An expecting mother may not work at night or overtime. Also, a pregnant employee may not be sent to work off-site (i.e., on a business trip) without her consent.
To recover from the trials and tribulations of pregnancy and childbirth, an employee is entitled to maternity leave. No minimum period of employment is required to qualify for the right to maternity leave. Over the last few years, the government, as part of its pro-family platform, has successively extended the length of maternity leave. Currently, it is 26 weeks if one child is born and 39 weeks in the case of multiple births. This most recent extension of the period of maternity leave abrogated the previous distinction between the first and subsequent childbirths.
Up to this time, I have been speaking only about female employees. As in other countries, there has been a movement to recognize paternity leave in Poland. Under current law, however, neither the father nor any other member of the family is entitled to take leave in connection with the stork's little gift. In January of this year, the Sejm tried to change this and voted in favor of permitting a female employee to shorten the period of maternity leave to 16 weeks. The remaining eight or 23 weeks could be used by the father, with his employer's consent. The Senate rejected these proposals.
Fathers should not give up hope. Polish law permits either parent to take up to three years of unpaid childcare leave, up to the time the child is 4 years old.
To complete the picture, it should be added that, according to the labor code, an employee should be given time off for doing certain activities connected with pregnancy and caring for a newborn, such as medical examinations and breast-feeding.
The law also contains limitations on the ability to fire a pregnant employee. During pregnancy and maternity leave, women are protected from termination of an employment contract, with or without notice, irrespective of the kind of contract. Protection also applies in the case of fixed-term contracts, trial-period contracts and contracts for the performance of a specific task. Each of these types of contracts must be extended to the end of the pregnancy if it was due to expire after the first trimester.
Maternity leave is counted as a period of employment for the purpose of calculating entitlements that are based on length of service, such as one's statutory vacation allowance and termination notification period, and is included in the woman's contribution record when calculating her retirement pension.
Judith Y. Gliniecki is of counsel with and the head of the technology group at Hunton & Williams' Warsaw office. She is also the mother of a boisterous 3-year-old and experienced the joys of pregnancy and childbirth in Warsaw at a time when maternity leave was only 16 weeks. She gratefully acknowledges the assistance of Andrzej Grygoruk, an associate attorney, in the preparation of this article.
