Equality reform (4): equal rights to maternity/paternity leave: a mandatory suspension of contract?

Continuing on from our posts on the equality reform implemented by Royal Decree-Law 6/2019, of March 1, on urgent measures guaranteeing equal treatment of men and women and equal opportunities in employment and occupation (“RDL 6/2019”), in this post, we will cover one of the most controversial new developments: the suspension of the contract due to maternity or paternity. The reform introduces equal rights to leave for both parents in the case of the birth of a child. The objective is twofold: (i) making equal the conditions for accessing the employment market, and (ii) promoting co-responsibility when caring for children. And so, the new article 48 of the Workers Statute (“WS”) establishes that, from January 1,  2021, the birth of a son or daughter will lead to suspension of the contracts of the biological mother and the other parent for 16 weeks; of these 16 weeks, the six weeks immediately after birth must be taken uninterrupted, and must be taken on a full-time basis.

The regulation on this point is the same for both parents, although the lawmaker distinguishes between the purpose of the suspension in each case: while the rest period is to ensure that the biological mother’s health is protected, the rest period for the other parent aims to meet the care obligations established in article 68 Civil Code, with an express reference to the obligation of spouses to “share the domestic responsibilities and the care duties of first-degree relatives and any other dependent persons for which they are responsible.”

After the first six weeks immediately after birth and until the son or daughter is one year old, the suspension of the contract can be distributed in weekly periods on an accumulated or interrupted basis, and its exercise cannot be transferred between the parents. The right of the biological mother to exercise this right early remains but is limited to four weeks before the expected date of birth.

The extension of the suspension will not come fully into force until January 1, 2021, due to a second transitional period established in the thirteenth transitory provision:

• From entry into force of RDL 6 /2019 (March 8, 2019), the reform will have full effects for the biological mother, but not for the other parent who will only have an eight-week suspension period; two of those eight weeks must be taken without interruption immediately after the birth.
• From January 1, 2020, the parent that is not the biological mother will have a 12-week suspension period, and the first four weeks must be taken without interruption immediately after the birth.

In both cases, during the transitional period, the biological mother can transfer to the other parent between two and four weeks of her non-mandatory suspension period. From 2021, this transfer will not be possible.

The imperative terms in the new wording “the birth will suspend” generate questions regarding the obligatory nature for workers to take those weeks, and also whether the obligatory nature of the suspension affects both the first six weeks immediately after birth and the entire 16-week period. This leads to another question: what would happen if a worker did not want to suspend the contract? Is it obligatory to suspend the contract? Could the worker be prevented from providing a service?

We could also question the obligatory nature of the suspension during the transitional period based on the new regulation of article 48 WS not establishing full effects until 2021.

These questions will be gradually resolved as the new regulation of the suspension of the contract due to maternity/paternity leave is applied, and where applicable, as the courts and judges issue decisions in this area. We will be closely monitoring any new developments.