Recent news articles published on the internet have raised doubts among companies about the obligation under the Consolidated Labor Laws (CLT) to extend maternity leave of employees in the event of hospitalization of the newborn, but in fact they referred to decisions rendered in favor of public servants, and not employees covered by the CLT.
In one of the cases, the public servant of the Federal District filed a lawsuit in the Civil Court alleging that, due to complications at childbirth, her daughter had to be hospitalized for a period of three months and twenty-one days in a neonatal ICU and that she needed full-time care from her mother. Cohabitation with the mother during the first months of life was therefore alleged to be fundamental to ensure the physical, psychological, and emotional development of the child, which had not been possible during the period in which she was hospitalized in the ICU due to health problems.
The Second District Court of the Special Courts of the Federal District granted the claim of the public servant and ordered the Federal District to count as beginning of the maternity leave only the time of discharge of the newborn from the ICU. In addition, the period of hospitalization should be considered paid leave to care for a sick child.
This decision and similar ones do not apply to employees governed by the CLT, since they were based on complementary laws that set forth the legal framework for public civil servants, which, for the most part, provide for the possibility of paid leave to care for sick family members.
Thus, although the decisions issued take into account the principle of the best interests of the child, there is no way to grant such an extension to employees governed by the CLT, since there is no possibility of extension of maternity leave or provision of paid leave to care for a sick family member in the labor and social security laws applicable under the CLT.
In other words, if the situation of the public servant in the Federal District occurred with an employee with a private employer, there would be no way to delay the beginning of maternity leave. This is because, under the provisions of the Federal Constitution, the maternity leave period under the CLT is 120 days, and may be extended for another 60 days only if the employer has joined the Citizen Company Program, under the terms of Law No. 11,770/2008. It is also possible to extend the period of rest before or after delivery for up to two weeks, in exceptional cases, upon delivery of a specific medical affidavit, provided for in article 93, paragraph 3 of Decree 3,048/1999.
What currently exists for employees under the CLT is a proposal for an Amendment to the Federal Constitution (99/2015), already approved by the plenary session of the Senate and in progress before the Chamber of Deputies. The objective is to amend item XVII of article 7 of the Federal Constitution to provide for the possibility of extending maternity leave for employees under the CLT in the event of premature birth due to the number of days the newborn is hospitalized.
It is worth noting that the content of the decision handed down in favor of public servants demonstrates the growing awareness of the real purpose of maternity, or paternity, leave which would be the need for the presence of the parents during the first weeks of the baby's life.
However, until the proposal for Amendment to the Federal Constitution No. 99/2015 is approved, there is no provision that provides for and regulates extension of maternity leave for employees of private companies, and there is no way to use the decisions rendered in favor of public servants as a paradigm for private sector workers.
Thus, for now, private companies are not obliged to extend maternity leave in the event of hospitalization of newborns.