Argentina: Law Project Regarding Special Leave

Last Updated: 14 June 2017
Article by Diego S. Kelly and Ailen Fernandez

In April 2017, an “Early Childhood Protection” Law project was introduced that extends maternity and paternity leave and creates leave for adoption, assisted fertilization and miscarriages. 

The project, proposed for the rights of children, parents and the family as a whole, modifies and incorporates the following articles:

Special Leave Regime. The following special leave is extended and incorporated:

  • For a child’s death five (5) days;
  • For a sibling´s death three (3) days;
  • For death of spouse´s child or cohabiting partner five (5) days;
  • For death of one of the parents of the spouse or of the cohabitee (1) day;
  • To take exams in primary, secondary or higher education, two (2) days per examination, with a maximum of twelve (12) days per year calendar;
  • To visit a prospective adoptive child, two (2) days with a maximum of twelve (12) days per year since the time the adopter initiates his/her previous visits to custody for adoption purposes until it hass granted by the competent judge;
  • For illness or medically assisted reproductive techniques of a dependent, spouse or cohabiting partner, two (2) days with a maximum of twenty (20) days, continuous or discontinuous per calendar year;
  • For medically-assisted reproduction procedures on female employees, thirty (30) days, continuous or discontinuous per calendar year.
  • In case of miscarriage, twenty (20) days per calendar year.  

Maternity Leave:   the prohibition to female employees to work prior to childbirth is extended to sixty (60) days and one hundred and twenty (120) days after. The employee may choose to reduce the leave prior to delivery. In such case, it may not be less than twenty (20) days; the rest of the total maternity leave may be accumulated to the period after childbirth.
The prohibition to provide services is incorporated during the period of one hundred and eighty (180) days after the effective notification of the judicial decision that grants the child or adolescent in custody for adoption purposes and the other parent or alleged adoptive parent during the thirty (30) days after the birth of his/her child or of the authentic notification of the judicial decision that grants the child or adolescent in custody for adoption purposes, respectively.
The parents are entitled to the leave provided for by the first and third paragraphs of this article, even if their child is stillborn.
In case of custody for adoption purposes, the alleged adopters will have the right to choose which of them will enjoy the leave established herein.
In the case of the death of one of the parents, adopter or alleged adopter, the other one may use the leave not taken that has been granted to the deceased.

Incorporation of Article 177 bis establishing the extension of parental leave for cases of birth or custody for multiple adoption purposes, the leave of the progenitor and the alleged adopter provided for in paragraphs 1 and 2 article 177 will be extended to thirty (30) more days for each child starting from the second one.
In case of high risk birth, the license provided for in paragraph 1 of Article 177 might be extended for thirty (30) days.
In the case of or custody for the purpose of adopting a child with disability or chronic illness, a sixty (60) day leave should be added.
For the cases contemplated in the preceding paragraphs, the other parent or alleged adopter is entitled to add a leave of fifteen (15) days from the second child and in cases of high risk birth and thirty (30) days in the case of child with disability or chronic illness.

New leave for pre-term birth:  In this case, the period of leave provided in the first paragraph of article 177 not enjoyed before the birth, will be accumulated. In addition, the maternity leave mentioned in the article will be counted as of the date of discharge of the new-born child.
In addition, the female staff will enjoy a special leave for prematurity that will last from the date of birth to the date of discharge of the child.The other parent is entitled to a fifteen (15) days leave.

Pregnancy notice: a new article is incorporated establishing that parents must duly communicate to the employer the pregnancy with a medical certificate stating the presumed date of birth, or require verification by the employer.
In the case of an adoption, parents must communicate the beginning of the legal procedures for obtaining custody of the child or adolescent by presenting the judicial record and the judicial decision granting to the child or adolescent custody for adoption purposes.

Birth of a child, Social Benefit and Employment preservation: both parents and the presumptive adopters will keep their employment for the periods stated in the articles 177, 177 bis and 177 ter, and will enjoy the allowances conferred on them by social security systems.
By the incorporation of a new article, the parents are guaranteed during gestation and the prospective adopters during the judicial process to obtain custody of the child for adoption purposes, the right to stability in their jobs. It will be an acquired right, since notification of the pregnancy or the beginning of the judicial proceedings for the adoption of custody is done. It will include the right to keep their job, the extent and the level of the career attained.

Employee’s dismissal for pregnancy or childbirth, adoption, or medically-assisted reproduction techniques. Presumption: The proposed amendment gives equal treatment to fathers and mothers in cases of maternity or paternity dismissals and extends and incorporates deadlines. This amendment presumes, unless evidence is provided to the contrary, that the dismissal without cause of workers is discriminatory if any of the following assumptions is made: 

  • When it is available within the period of eight and a half (8 and ½) months before and twelve (12) months after the date of birth, provided that the employer is aware of the pregnancy and/ or birth. This presumption also applies in case of miscarriage.
  • When it it is given after the pregnancy of spouse or partner has been notified and up to twelve (12) months after the birth of your child.
  • When it is given within twelve (12) months after notification to the employer of the initiation of custody proceedings for adoption purposes.
  • When it is given within the term of twelve (12) months after the communication of the utilization of medically-assisted reproduction procedures and techniques.  

The article also incorporates that, in case of dismissal, the affected employees may opt, exclusively, for the compensation payment equal to that provided for in article 182 of Labor Contract Law or for the reinstatement in their work position in the same conditions as before, with higher wages if appropriate. 

Daily rest due to breastfeeding or feeding. The proposed modification allows the progenitor or the adopter to have one (1) hour to breastfeed or feed their child during the working day. The rest may be taken either: (i)  once within the day (ii) dividing it in two (2) periods, (iii) or postponing or advancing in half an hour or an hour the start or end of the working day, for a period not exceeding twelve (12) months after the date of birth unless for medical reasons it is necessary for the mother to breastfeed her child for a longer period. 

Child Development Centers: establishments where a minimum of fifty (50) workers are employed, the employer must establish a Child Development Center to be used by the children under three (3) years, of the employed staff.
These Child Development Centers must comply with the requirements of Law 26.233, will not have cost to the beneficiary employees, shall remain open and in service until at least thirty percent (30%) of the staff is in working hours and operate within the premises of the workplace or at a distance of not more than one (1) kilometer from the establishment, and may be installed in association with more than one employer.
The article incorporates the possibility of the employer to replace such obligation by a monthly payment of a non- remunerative money benefit.

Reincorporation of employees after maternity, paternity o adoption leave: for the parents or alleged adoptive parents benefiting from the leave mentioned in paragraphs 1 and 2 of article 177, respectively, under  current employment relationship, who continue residing in the country, the possibility of returning to the workplace reducing their normal working hours by half and their monthly remuneration in the same proportion, for a period no exceeding six (6) months schedule within the end of the corresponding leave is incorporated.

Likewise, the proposed amendment allows the employer to replace the parent only in the same category and working conditions as they had at the time of birth, the granting of custody for adoption or the child´s illness.

Finally, article 186 establishes that in the event of a failure to reinstate the parent after expiration or exceeding leave period, the employer must first take the notice provided for in article 244 of the employment contract law to decide on the termination of the work employment contract.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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