Mandatory parental leave – important changes

Law 120/2015 September 1 has introduced important changes to the father’s compulsory parental leave, from 10 to 15 working days, consecutive or interpolated, adding new rules to the Labour Code which dictate that the father must enjoy the leave within 30 days following the child’s birth, five of which can be enjoyed consecutively immediately after the birth, corresponding to the payment of a parent allowance.

The legislative amendment is intended to remove obstacles and to boost birth rates by strengthening the rights of mothers and fathers.

The amendments to article 43 of the Labour Code and to the Decree-Laws 89/2009 and 91/2009 (about the exclusive initial parental allowance) only take effect with the 2016 state budget.

The other amendments are effective five days after the publication, which was on September 1, 2015.

Both parents have the right to the initial parental leave of 120 or 150 consecutive days, which may be shared by the father and the mother upon the birth of the child, and after the compulsory 42 days taken by the mother.

The new law has added that the parental leave may be taken simultaneously by both parents between the 120 and the 150 days. Therefore, at the most, father and mother can enjoy 15 days’ leave together. Also, if both parents work in the same company (with fewer than 10 employees), the simultaneous use of the initial parental leave depends on the employer.

Employees with children under 12 years old or, regardless of the age, if they are disabled or chronically ill, are given the opportunity to choose to work part-time or on flexible time (in which the employee may choose, within certain limits, the start and finish of the daily working hours), without incurring any penalty in terms of career progression.

Parents with children up to three years old may request to work at home, under the “telework” regime (“teletrabalho”), but it depends if their job is compatible with its tasks, and if the employer has the resources and means to implement this labour regime.

It is now considered a serious offence if an employer does not communicate, within five working days, to the competent authority in the field of equal opportunities for men and women, the reasons for the non-renewal of the short-term employment contract of a pregnant, postpartum or breastfeeding employee. This is to prevent illegal dismissals.

The employee with a child under three years old may not be covered by the adaptability regimen or application of the hour bank (“banco de horas”) system, failing his agreement, in writing.

By Dr Eduardo Serra Jorge
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Dr Eduardo Serra Jorge is founding member, senior partner and CEO of lawyers firm Eduardo Serra Jorge & Maria José Garcia – Sociedade de Advogados, R.L., created in 1987.
In his column, he addresses legal issues affecting foreign residents in Portugal.
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