Health and Benefits|Inclusion-and-Diversity|Benessere integrato
Employer Action Code: Monitor
The Constitutional Court has struck down the government-paid paternity leave entitlement of two days under the Labor Code, on the grounds that it violates the right to equality on the basis of gender and the principle of reasonableness established by the constitution. Interestingly, the decision is similar to a recent one by the High Court in South Africa that declared family leave rules there unconstitutional due to unfair discrimination between mothers and fathers (see this Global News Brief: South Africa: Court finds current statutory family leave rules unconstitutional).
Article 54 of the Labor Code (Law 16-92) entitles private sector employees to two days of paternity leave. The Constitutional Court ruling in October 2023 annuls this provision, with deferred effect of two years, during which time the government must legislate a new paternity entitlement more consistent with the constitutional principles of equality and reasonableness, and one that “must be progressively adjusted, as socioeconomic circumstances permit, until reaching a period of leave that truly and effectively guarantees the exercise of responsible parenthood under conditions of gender equality.”
Prior to the court ruling, three separate bills were submitted to the National Congress since 2022 to extend the paternity leave entitlement (to eight, 15 and 21 days) for private sector employees. After debate, earlier this year the Chamber of Deputies approved a version that would extend government-paid paternity leave to 10 working days in the cases of birth and adoption, but the bill is still with the Senate. Notably, the paternity entitlement for public sector employees was increased to 15 working days in June 2022.
Just over 40% of surveyed companies provide employer-paid paternity leave in excess of the statutory minimum, at the median 21 days — though the range is quite wide (five days at the 25th percentile and 84 days at the 75th percentile). Employers would not be expected to bear the cost of extended pay-replacement benefits resulting from an increase of the minimum paternity leave entitlement and its extension to adoptions; however, employers should monitor the situation and prepare for the effects on workforce planning.