Mothers and fathers will be able to share the extra 60 days of leave after the birth of the child

The extension of the maternity leave period may be divided between mothers and fathers, provided that both work in companies that participate in the Empresa Cidadã program. The sharing of overtime is provided for in the provisional measure 1116, approved this Wednesday (31) in the Senate.

On Tuesday (30), the text had been analyzed and approved by the Chamber of Deputies. Now it goes to sanction by President Jair Bolsonaro (PL).

The proposal also defined that citizen companies will be able to replace the extension of maternity leave with a reduction in working hours. Instead of the 60 days – with the extension of the leave, mothers can spend up to six months dedicated to their children –, the company would grant 120 days of working hours, reduced by half.

During the period, however, the worker’s salary will be full. In the opinion of the labor prosecutor Melícia Carvalho Mesel, deputy national coordinator of the Coordigualdade (National Coordination for the Promotion of Equal Opportunities) of the Public Ministry of Labor, the sharing of the license may be a sign that in the not too distant future there will be a extension of paternity leave.

Some amendments attempted to extend the time for which parents can exclusively care for newborn or adopted children, but the proposals were not incorporated into the final text.

Also left out of the final text were the articles that provided for the use of the FGTS (Fundo de Garantia do Tempo de Serviço) for the cost of day care centers and qualification programs. For Mesel, from the MPT, the removal of the articles was a victory.

The labor prosecutor regretted, however, the maintenance of the article that deals with the possibility for employers to reimburse the costs of day care or preschool. Those who adopt this benefit will not be required to maintain a nursery or a space for mothers to breastfeed their children when they return from maternity leave.

“This was a very important achievement for women, to guarantee and effect female participation in the labor market”, says the prosecutor.

According to the rapporteur in the Chamber, deputy Celina Leão (PP-DF), the replacement of the nursery by payment has already been adopted by an ordinance from the Ministry of Labor since the 1980s, the most recent being in 2021.

The ordinance to which the rapporteur refers says that the nursery requirement can be “met if the establishment maintains a day care center directly or through agreements with other public or private entities.”

Leão defended, in his report, that the inclusion of reimbursement in the legislation increases legal certainty and favors women as it extends the right to the benefit until the child turns five years old.

For labor lawyer Fernando Bosi, a partner at Almeida Advogados, the change is positive, as it will allow daycare assistance to be implemented by individual agreement and with the guarantee that the amount will not have a salary nature, with no impact on the payroll.

In his opinion, the change “dynamizes relations between employers and mothers who no longer depend on unions to have access to the benefit and generates security for the employee”.

In this project, the government also provided for the creation of a seal for companies that stand out for organizing, maintaining and offering day care centers for the children of male and female employees and that have good practices to encourage the hiring of women for leadership positions, especially in the areas of technology, science, development and innovation.

The Ministry of Labor and Employment will still have to prepare the regulation of the seal, baptized in the project of “Emprega+Mulher”.

Understand the main points of the government project

Measures to support parenting

1) Daycare reimbursement

• The project did not set value parameters: this will be done in a government act
• Companies that adopt reimbursement will no longer need to maintain a breastfeeding space on their premises
• Employees will be informed that the benefit exists and payment must be formalized in an individual or collective agreement or convention
• The benefit will be valid for the payment of day care or preschool or expenses of the same type and that can be proven
• It will be awarded to mothers and fathers with a child up to 5 years and 11 months
• The benefit will not be of a salary nature, will not be incorporated into the remuneration, nor will it have an incidence of INSS and FGTS

2) Daycares in the S System

• Sesi, Sesc and Sest will be able to maintain early childhood education institutions for the children of workers linked to their activities – industry, commerce and transport.

Support for returning to work at the end of maternity leave

1) Flexibility of usufruct of the extension of maternity leave

• The extra 60 days of maternity leave can be shared between parents
• It is necessary that both work in companies participating in the Empresa Cidadã
• The 60-day extension can be exchanged for a 50% reduction in working hours for 120 days.
• If companies prefer to reduce working hours, they will have to pay the employee’s full salary during the 120 days

2) Suspension of the employment contract of employed parents to monitor the development of their children

• The suspension, in the same way as the contract break for qualification, may start at the end of the maternity leave of a wife or partner
• While on leave, the worker will have to go through a course or qualification program for 20 hours and it must be exclusively at a distance and up to 20 hours per week
• Employers will have to make wide disclosure of the existence of the right
• For the MPT, this benefit should be granted through the interruption of the employment contract so that labor funds, such as FGTS and INSS continue to be paid during the period.

Flexibility of the work regime

• All measures will need to be provided for in an individual or collective agreement or in a collective bargaining agreement
• They are valid for fathers and mothers with children, stepchildren or children under guardianship up to six years old.

1) Teleworking for moms and dads with young children

• Mothers and fathers with children, stepchildren or a child under guardianship of up to six years old will have priority

2) Work and vacation regime until the child or stepchild turns two years old

• Special work regime (up to 30 hours per week)
• Anticipation of vacation (minimum period of five calendar days)

3) Bank and scale compensation

• Compensation for working hours by bank of hours
• 12 h work shifts for 36 h rest
• Flexible hours for check-in and check-out

Qualification in strategic areas

1) Suspension of the contract for qualification

• It will apply to sectors considered strategic or with less female participation, such as science, technology, development and innovation
• The suspension will be valid for participation in a course or qualification program offered by the company
• During the suspension, the employee will receive a qualifying grant funded by the FAT
• The employer may pay a supplement (as in the suspension of the BEm)
• For the MPT, this benefit should be granted through the interruption of the employment contract so that labor funds, such as FGTS and INSS continue to be paid during the period.

2) Encouraging the occupation of free social services vacancies

• National learning services should take action to encourage free places in courses, especially in the areas of science, technology, development and innovation, to be occupied by women
• Women victims of domestic or family violence with a police report must be included in the priority criteria for these vacancies.

Stimulation of microcredit

• Women who are working in a productive activity or are individual micro-entrepreneurs will have different conditions in SIM Digital (credit program recently launched by the government)
• Women who are MEI will be entitled to R$5,000 and the interest rate will be up to 85% of the maximum rate defined by the National Monetary Council
• The credit will be BRL 2,000 for self-employed