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Netherlands increases options for partners to take birth leave

New privileges comes with consequences

12/08/2020

As of 1 July 2020, the Netherlands introduced a substantial increase in birth-leave entitlements. Parental partners whose child was born on or after 1 July 2020 are now entitled to five weeks of supplemental birth leave.

In this update we discuss the new regulations including the consequences it will have for your employees and business.

Background: birth leave for partners

On 1 January 2019, the Additional Leave (Introduction) Act (WIEG) came into force, changing the rules for birth leave for partners (i.e. paternity or partner leave). 

Under the WIEG, partners are entitled to a maximum of one-week birth leave with the duration of the leave equalling the normal working hours per week. During birth leave, the employer continues to pay the salary in full. The employee can take leave days at his/her discretion, but must do so within four weeks after the birth of the child. 

Who is defined as "partner"?

In terms of partners, the following persons qualify as partner and are entitled to (supplemental) birth leave:

  • The person married to the mother;
  • The person who is her registered partner;
  • The person who is unmarried but living with the mother; and
  • The person who has legally acknowledged the child.

How do the new rules affect salary?

The 1 July 2020 entitlements impact the salaries of the partners receiving birth-leave entitlements. Different from the maximum one-week birth leave where the employer is obligated to pay for leave, the Dutch Employee Insurance Agency (UWV) will pay the supplemental birth leave, awarding a benefit that equals 70% of the daily wage of the partner, but capped at 70% of the maximum daily wage. As of 1 July 2020, the capped amount is 70% of EUR 222.78 a day (gross pay). The employer may voluntarily supplement the benefit to the normal salary level, but this is not required. 

How to apply?

The employee must inform the employer about the request for supplemental birth leave at least four weeks before the requested date. Subsequently, the employer must send the application to the UWV between four weeks prior to the supplemental birth leave and four weeks after the last day of leave. The employee must first use the regular birth leave (capped at a one-week maximum) before the supplemental birth leave comes into play. 

Timing of additional birth leave

The employee can apply for the additional leave in whole weeks (e.g. one, two, three, four or five weeks). The employee can only take the (maximum) additional five weeks leave within six months after the birth of the child. 

In principle, the employee can decide how the supplemental birth leave will be taken (i.e. which weeks and how many). This, however, could lead to a situation where the employer is short of staff if several employees take additional leave at the same time.

Can an employer refuse a leave request?

The employer can only refuse the requested supplemental birth leave and suggest other days or weeks if there are compelling reasons vis-à-vis business or service interests (e.g. timetabling reasons or shortage of staff). Any contemplated refusal must be made in consultation with the employee. Normally these exceptions are not easily accepted in court. 

Stay vigilant 

With this new legislation, partners have more options for taking supplemental birth leave and employers should be aware that this can lead to a shortage of staff. It is therefore crucial to address staff maternity situations in a timely fashion and consult with the employee if a planned leave conflicts with a company's business or service interests. 

Finally, as of August 2022, European directives entitle parents to two months paid parental leave. Legislation is currently in the works to incorporate these directives. 

For more information on how supplemental birth leave might affect your business and how to handle these situations, contact your regular CMS advisor or local CMS experts.

Authors

Niels-Koene-CMS-NL
Niels Koene
Advocaat
Amsterdam
Rene-van-Egdom
René van Egdom
Advocaat
Amsterdam