On July 29, 2021 Law 2114 of 2021 was published, which has the goal to reduce the labour discrimination against women and make their job opportunities much better, it also changed the duration of the paternity leave, created the possibility to share some of the maternity leave weeks between the mother and the father under the “Shared parental leave” scheme and also created the “Flexible time parental leave”.
Despite the changes that we will explain with detail on this newsflash, which initially create better conditions for men who become parents, trying to guarantee that they can be more involved in their roles as parents of new-born children, it is seen that nevertheless, there still is a significant gap between the benefits and conditions for women regarding motherhood, against those that are granted for men when they become fathers, which brings that unfortunately there are still some cases of inverse discrimination against women on the work market.
Also, it is important to highlight that the appliance of the concepts of “Shared Parental Leave” and “Flexible Time Parental Leave” require certain preliminary formalities, which means that there will be challenges for employees, employers and social security entities at the moment of starting up with the compliance of these new regulations, in order to avoid that these new concepts may affect the internal operation of companies, and also may bring overwork for the health entities that could affect their internal functioning.
ADJUSTMENTS AND CHANGES OF ARTICLE 236 OF COLOMBIAN LABOUR STATUTE
Article 236 of Colombian Labour Statute states the main dispositions that regulate what is related to maternity, paternity and all the benefits and conditions that come from the fact of becoming parents.
Regarding the publishing of Law 2114 of 2021, the aforementioned article had the following changes and additions:
- Extension of the paternity leave time: Before the publishing of the regulations analysed on this document, the paternity leave lasted 8 working days.
However, according to the dispositions stated on article 2 of Law 2114 of 2021, the paternity leave will be regulated according to the following:
- The duration of this leave will be of 2 weeks initially, clarifying that this initial time could be extended for an additional week for each percentage point in which the unemployment rate is reduced compared to the rate applicable at the time this Law was published, stablishing a maximum limit of 5 weeks.
The measurement methodology of the unemployment rate must be defined by the Ministry of Treasury, The National Planning Department, and the public national bank (Banco de la República), also, the unemployment rate published in the month of December of each year, will be the reference to define if the time of the paternity leave will or wont be extended on the following year.
- The valid document to be entitled to this leave, will be the notary birth certificate which must be submitted to the health entity (EPS) on the following 30 days after the birth. (We suggest our clients to be very strict with the compliance of this term in order to avoid possible rejections of the entities at the moment of claiming reimbursements for this concept).
- Creation of the “Shared Parental Leave”: A fourth paragraph was added to article 236 of Colombian Labour Statute, in which the Shared Parental Leave is regulated according to the following dispositions:
- Both parents can agree the distribution of the last 6 weeks of maternity leave, in order that they can be taken by the mother or the father (being essential that the mother takes the first 12 weeks of the 18 weeks of maternity leave).
- It won´t be allowed that the shared leave days that were distributed by both parents’ decision, are fractured, or taken simultaneously, unless in the exceptional case in which the mother has a certified postpartum disease.
- The payment of these leave days will be calculated according to the salary of the person who is enjoying the leave days on the correspondent time period.
- To formalize this shared parental leave it is necessary to comply with the following requirements:
(i) To deliver the birth certificate on the following 30 days after the birth.
(ii) Both parents must subscribe an agreement in which they indicate the distribution of the last 6 weeks of the maternity leave, which must be approved by the attending doctor, in order to guarantee that the health of the mother and the new-born are not affected.
(iii) There must be a medical certificate in which it is stated: the pregnancy state or the certification of the birth, information about the possible due date or birth date in case the baby had already been born at the time of the certificate, and indication of the number of leave days for each parent.
- Those fathers who have been convicted on the last 5 years for sexual crimes or on the last 2 years for crimes related to family violence or noncompliance of parental obligations, and those who have a protection caution according to the dispositions stated on Law 1257 of 2008 cannot be beneficiaries of the Shared Parental Leave.
- Creation of the “Flexible Time Parental Leave” A fifth paragraph was added to article 236 of Colombian Labour Statute, in which the Flexible Time Parental Leave is regulated according to the following dispositions:
- It is possible to change a certain part of the maternity or paternity leave for a period of part time job, which will be equivalent to the double of leave time of the selected period. (For example: if a mother decides that 2 weeks of her maternity leave will be taken under this type of leave, it will imply that the leave would extend to 4 weeks, during this period half of the time will be part time work and the other half will be taken as flexible time parental leave).
- The appliance of this type of leave will be possible for fathers when it is requested before the second week of paternity leave, and in the case of mothers it is important to keep in mind that it cannot be requested before the thirteenth week of maternity leave.
- The days that are taken as flexible time parental leave must be taken in a continuous way, hence they cannot be fractured or interrupted in order to be taken after (unless there is an express agreement between the employee and the employer).
- The payment of this leave will be according to the salary of the person who is enjoying this type of leave, making it clear that the part time leave must be paid by the Health Entity (EPS) and the part time work shall be paid by the employer in accordance with the salary regulations.
- It is important to keep in mind that in this particular case it is necessary that there is an agreement between the employee who wants to take this type of leave and the employer. Therefore, it is necessary to ask the employer during the following 30 days after the birth about the possibility to apply this special kind of leave, clarifying that once the employer receives the request, he/she must present a response on the following 5 days after the submission of the request.
- In case there is an agreement between the employer and the employee that is going to take the flexible time leave, these documents must have attached a medical certificate in which it is stablished the pregnancy state or the happening of the birth, the possible due date or date of birth, and the dates in which the flexible time parental leave is going to be taken.
- Both the shared parental leave and the flexible time parental leave can be granted to employees of the public sector, and in the cases of birth of premature children and adoptive children.
d) Other dispositions.
Finally, Law 2114 of 2021 added article 241A to Colombian Labour Statute, in which it is stated that the request of a pregnancy test and the making of questions about reproduction plans to candidates during recruitment processes and job interviews will be considered a discriminatory conduct, warning that in case they happen, there could be the impositions of fines equivalent to a maximum of 2455 Tax Value Units.
Hence, according to the challenges that the implementing of these new dispositions brings and the eventual questions and doubts that may arise once they start being applicable in the practice, it is possible the authorities may issue additional regulations in order to determine the specific formalities and procedures that must be done to formalize the granting of these leaves. We advise employers to work in a coordinate way with their expert allies on employment and social security subjects in order to guarantee the right and correct implementation of these procedures, avoiding possible damages and difficulties on their adequate operation.