New measures on parental and family leave
New legislation at the approval stage in the Portuguese parliament in May 1999 will improve existing provisions on parental and family leave and protection for women undergoing a high-risk pregnancy. The legislation, which partly transposes the EU parental leave Directive into Portuguese law, creates a special regime whereby grandparents can take time off to provide childcare in some circumstances. Furthermore, parental leave will be increased for adoptive parents, and the distinction between "nursing mother" and "infant care provider" will be clarified to enable more fathers to take leave.
In May 1999, the Portuguese parliament debated and started the approval process for a set of draft laws aimed at increasing family protection through parental leave and special protection for women whose pregnancy is considered to be high risk. This legislation forms part of Portugal's transposition of the Council Directive (96/34/EC) of 3 June 1996 on parental leave (TN9801201S).
Portugal's existing provisions on parental and family leave are as follows:
- all employees have a right to a period of unpaid parental leave for between six months and two years following maternity leave;
- working fathers have the right to two working days' paternity leave and, under exceptional circumstances or by parental joint decision, fathers may take leave in lieu of the mother's maternity leave entitlement;
- in cases of the adoption of children under the age of three, 60 consecutive days' leave is granted to one of the parents, but only if both parents work;
- time off work may be taken by either parent to care for children under the age of 10 who are ill - up to 30 days per year or the entire time if a child is hospitalised. Up to 15 days off per year is allowed for children over the age of 10. Special leave may be taken for a maximum of two years to care for children under the age of three, or for a maximum of four years to care for disabled or chronically ill children. The law also confers the right to a reduction in weekly working hours of up to five hours to enable parents to care for disabled children of up to one year of age; and
- workers with children under 12 or disabled children may request part-time work or flexibility in working patterns for up to three years.
The most innovative points of the proposed new legislation are as follows:
- women will receive improved protection in cases of high-risk pregnancy, with the length of additional leave increased from 30 days to an indefinite period;
- obligatory post-birth maternity leave is increased to six weeks from 14 days;
- fathers are given the right to take five working days of paid paternity leave in the month after the child is born (previously two days);
- the definition of maternity leave (previously restricted to nursing mothers) is broadened to include infant care, making it possible for the father to be the care provider;
- parental leave is defined as the right of the father or mother to be absent from work for three months to take care of their natural or adopted child of up to six years of age. Alternatively, the father or mother may work part-time for six months. The previous law provided parental leave for adoptive parents only if the adopted child was under three years of age. Leave for adoptive parents has been extended to include children up to six years of age in the belief that older children also needed a period of intimacy, care and attention;
- parental leave may be added on to the existing period of leave in special circumstances during the first three years of the child's life;
- better protection against dismissal is provided for pregnant women, those which have recently given birth and those who are nursing;
- the scheme that permits workers to be absent from work to care for their natural or adopted children in case of illness or injury will now be extended to workers who are legally appointed guardians of a child; and
- in the light of the many cases of teenage pregnancy (under 16 years of age), at an age when young women are often not considered experienced or mature enough to care for a newborn child, the law recognises the right of grandparents of such children to be absent from work for 30 days to help with care, as long as they actually live together with the young mothers.
The social partners did not anticipate difficulties in transposing the parental leave Directive, since Portuguese law was already, in some cases, more favourable - with the exception of the part relating to adoption. The 1996-9 tripartite Strategic Concertation Pact (PT9808190F) recognised the need for equality and for the adoption of the Directive. Sector-level collective bargaining on parental leave has only added some details, without making any significant advances with regard to existing law.
The current draft of the proposed law was well received by the parties in parliament, welcoming the equality of opportunities represented by allowing grandparents time off to care for their grandchildren, while in some cases regretting that this assistance was not made available for mothers up to 18 years, rather than 16. They support the distinction made between "infant care provider" and "nursing mother", which is important in making it possible for fathers to be involved in the process. The parties also welcome the fact that the state will take on new responsibilities with regard to healthcare for pregnant women.
Some of the more pessimistic political parties, such as the opposition People's Party (CDS-PP) state that there is a need to introduce policies to increase the birth rate in Portugal, where the population is already showing obvious signs of ageing, or to introduce an across-the-board family policy that would cover housing, social facilities and urban policy. The current legislation on family issues intervenes only at the level of the labour market, which the government does not control and where unstable forms of employment and labour violations are rife. They claim that mothers often do not demand their rights because they are afraid of being away from their jobs too long. CDS-PP believes the law may prove to be disappointing.
This law is considered an important step in conciliating work and family life, and in policies to provide equal opportunities between mothers and fathers, strengthening the roles and rights of all. (Maria Luisa Cristovam, UAL)