Length, extensions, pay shared between the employer and the National Social Security Fund, protection against dismissal and return to work: what the Labour Code provides for an employee who is expecting a child, and what the employer needs to plan for.
How long is maternity leave?
The employee is entitled to suspend her employment contract for fourteen weeks: the period starts six weeks before the expected date of delivery and ends eight weeks after the date of delivery (Article 153.1).
Whatever the circumstances, it is prohibited to employ a woman during the six weeks following her delivery (Article 153.1). The employer therefore cannot accept an early return during this period, even if the employee asks for it.
During the leave, the contract is suspended, not terminated (Article 151.2).
Can the leave be extended?
Yes, in three cases:
- Multiple births: the leave is extended by two weeks (Article 153.2).
- A medical condition resulting from the pregnancy or the confinement, certified by a medical certificate: the suspension is extended by the length of that condition, up to a total of no more than eight weeks before the expected date of delivery and ten weeks after it (Article 153.1).
- Delivery before the expected date: the suspension may be extended until the employee has had the full fourteen weeks to which she is entitled (Article 153.1).
Where delivery takes place after the expected date, the eight weeks following the birth are still due: they are counted from the actual date of delivery.
How is the employee paid?
During the leave, the employee receives (Article 153.3):
- from the employer, half the salary she was earning when work was suspended;
- from the National Social Security Fund, the other half.
She is also entitled to the medical care provided for by the regulations in force.
The conditions under which the Fund pays its share (length of membership, method of calculation, ceiling) are governed by the Social Security Code. Check them with the Fund before the leave begins, so that the employee does not suffer a break in income.
Maternity leave is treated as actual work for the purpose of calculating paid leave (Article 222.9): it does not reduce the employee’s leave entitlement.
Can the employee be dismissed?
During maternity leave and during any unpaid leave that may follow it, the employer may terminate the contract only if it can show (Article 153.5):
- serious misconduct by the employee, unrelated to her pregnancy;
- or that it is impossible to maintain the contract for a reason unconnected with the pregnancy, the delivery or maternity.
Outside these two cases, the termination is unlawful. In the event of a dispute, either the employee or the employer may refer the matter directly to the court with jurisdiction over labour matters, or first request optional conciliation from the labour inspector (Article 153.5).
Can the employee resign without notice?
Yes. During pregnancy and until the end of the ninth month following the birth, the employee may terminate her contract without notice (Article 153.6).
What happens at the end of the leave?
When maternity leave ends, the employee may:
- return to her job, since the contract was only suspended;
- take unpaid leave of no more than nine months (Article 153.4);
- request leave of absence for breastfeeding, which the employer cannot refuse (Article 156.2).
An employee who does not return on the planned date has not thereby resigned: a resignation must be clear and unequivocal. Before taking any decision, it is best to ask her in writing to state her choice.
Breastfeeding breaks
An employee who returns to work is entitled to breastfeeding breaks totalling one hour a day, for no more than nine months from the birth (Article 153.4):
- she may take them as one, two or three breaks;
- she sets the times and informs the employer in advance;
- those times may then be changed only by mutual agreement.
An employee who has taken unpaid leave is also entitled to these breaks on her return, within the nine months following the birth.
GHR best practice
- Ask for the medical certificate stating the expected date of delivery and work out the start and end dates of the leave with the employee.
- Plan the payroll: half the salary is borne by the employer, the other half paid by the National Social Security Fund.
- Check that the employee is properly registered with the Fund and that contributions are up to date.
- Arrange cover during the absence, without changing the employee’s job.
- Take no termination measure during the leave without checking that it falls within one of the two permitted cases.
- Prepare the return: the employee’s choice (return, unpaid leave, leave of absence) and the organisation of breastfeeding breaks.
