Paternity leave and other benefits in favor of the biological father or adoptive parent

Approved in the second debate on Monday, April 18, 2022, Bill No. 21,149 reforms articles 94, the second and third paragraphs of article 94 bis, and articles 95, 96, 97, and 100 of the Labor Code (from now on, CT). The new legal text is named Law to combat labor discrimination against women in maternity conditions. It will apply to companies as long as there is no regulation more beneficial than it or, if there is, if it does not regulate specific details that the legal reform does contemplate.

In this way, three special licenses are created in favor of the biological father or adopter: paternity leave, postpartum leave, and adoption leave.

Paternity leave corresponds to eight days distributed over two days per week during the first four weeks after the son or daughter's birth. This license would not be added to the one already existing in some companies that, in the absence of a legal norm, had already acknowledged such benefit unless they voluntarily decide to carry it out. If the term granted before the Law is shorter, the longer-term now granted prevails; On the other hand, if the term is greater than eight days, the internal rule that benefits the workers continues to apply.

Although the logic of the regulation is that the license can be made effective throughout the first four weeks, it is possible that in the end, although it is a rule not allowed by the Law, the parties end up agreeing on a cumulative enjoyment or even another distribution in time that ensures better use without increasing the number of days. In such cases, the reasonable intention of the legislator is likely to be outweighed by the real needs of the family unit. In any case, enjoyment under different conditions would only be viable by agreement between the parties and insofar as it favors the parents, given the inalienability of the benefit.

The consequence of modifying the time of enjoyment or the term for which the benefit is extended could raise some reasonable doubts about the protection granted during the license. The validity of said concession could be interpreted in a restrictive sense only in force during the days of the license, given its divided enjoyment, or in a broad sense, until the end of the last day of the discontinuous enjoyment license. This is an issue to be clarified by the courts or the administrative authority. It is possible that an interpretation in a broad sense discourages or weakens the increase in the number of days of leave or its deferred enjoyment over a more extended period.

Interestingly, paternity leave is subject to two specific purposes: sharing with your newborn son or daughter and contributing to their care, since this would imply that it could be suspended in cases in which it is shown that these conditions are not met. This is evidently presumed in the mother's case since evidence of something similar is not required. For the rest, in these situations, the father's presence is not enough, but also that he "contributes" to the corresponding care. Unlike postpartum leave, in which documentary proof of the worker's "commitment" is required, paternity leave obviates a similar requirement and does not ask the worker to prove that he will "contribute" to the care of his newborn son or daughter or declare a commitment to do so.

The non-granting of the license is classified as a severe offense to set the amount of the fine for the infraction and because the worker could terminate the contract with labor responsibility (article 83 CT) within six months.

In the case of judicial condemnation, due to the rescission of the employment contract with employer responsibility, another novelty is that a sum of six salaries is added to the benefits for termination of the contract. Such amount is the same that is imposed as compensation for lost wages to those who do not demonstrate the existence of the cause for dismissal (article 82, CT).

Finally, it is novel that said sanctioning regime is foreseen only for this license when it is evident that the refusal to grant the other two licenses that we will analyze has the same seriousness.

Additionally, for the benefit of the biological father, the reform introduces a postpartum leave in the case of maternal death in childbirth or during the postpartum leave, provided that the child has survived. To grant it, a "commitment" to take care of the minor is requested; It is assumed that this document, at least formally, should be derived from the certification issued by the National Children's Trust (PANI) or, finally, should be formalized by means of an affidavit.

The license for individual adoption is three months. In joint adoption, the license term can be divided by mutual agreement between the adopters; In addition, it may be taken simultaneously or alternately, according to their decision. This must be indicated in the certification issued by the PANI, the family court, or the notary public if it is individual or joint. In any of the modalities, the beneficiary can be a man. If the people work for different employers, in joint adoption, the sum of the licenses granted to the adopters must not be greater than three months; In addition, it will require an efficient control mechanism that must necessarily be done through the disability registry of the Costa Rican Social Security Fund (CCSS).

As for the payment that must be granted in any of these three licenses, the overview is imprecise. On the one hand, the legislator refers to the regulations on "Maternity Risk" that regulates the CCSS, which provides that the calculation of the benefit will be made with the average of the wages reported in the last quarter before the event that causes the license (article 43 of the Health Insurance Regulations of the CCSS); on the other hand, it orders that it be done "on the basis of the salary that the worker had before said leave" and it is possible that the last salary received is not the same as that obtained from the average already indicated. The addition of variable income (commissions, bonuses, overtime, etc.) may result in the average salary being higher or lower than the last received, and if it is an exceptional amount, the employer should not be required to maintain that amount during the leave, as if it were a periodic income. Given the existing parallels with the mother's maternity leave, the reasonable thing is to apply the same existing rule in the CCSS regulations.

It is also necessary to decide whether paternity leave and postpartum leave, in the event of the biological mother's death, are complementary or exclusive. If the purpose of each one is taken care of, they should be exclusive because, during the time in which the postpartum leave becomes effective, the purpose of the paternity leave is also fulfilled.

At Bufete Godínez y Asociados, we specialize in counseling and advising employers in labor and employment law. If you need any additional information, do not hesitate to contact us by clicking here.


About the Autor

Alejandro Godínez Tobón

Alexander Godínez Vargas

Email: [email protected]
Phones +506 2289-5250 | +506 2289-255
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