Maternity - Mandatory leave for female employees

July 11, 2022

Let's start from its definition: compulsory maternity leave is a period of paid and compulsory abstention from work foreseen for the mother. There are 5 months in total: the worker can choose between the formula

2+3 months (the 2 months before and the 3 months following the birth)
1+4 (1 month before and 4 after the birth).
Or, new from 2019, the 5 months immediately after giving birth.

The period of compulsory maternity leave is protected by our Constitution, which considers it "adequate protection for the mother and the child". Even the Civil Code, in article 2110, states: «In the event of an accident, illness, pregnancy or puerperium, if the law does not establish equivalent forms of social security or assistance, the salary or a 'indemnity to the extent and for the time determined by special laws, by custom or according to fairness, and the period of absence from work for one of the aforementioned causes must be calculated in the length of service". However, the reference regulation of compulsory maternity is the Consolidated text on maternity Legislative Decree 151/2001 and subsequent amendments, including the modification made to the period protected by the 2019 Budget Law. Whether it is an employee or self-employed worker, the methods of request and the economic treatment vary from case to case. Being a very broad topic we have decided here to focus on the employee. In the next issue of the magazine we will refer to the self-employed audience.

When we speak of worker and employee, we mean private workers, public workers, worker members of cooperatives, those with an apprenticeship or part-time contract. Periods of compulsory maternity leave are not counted as a training period, the term of which will therefore be postponed by a few months. For part-time workers the same principles are applied as for the other types, with an obviously reproportioned economic treatment. Be careful , however: the choice to take advantage of flexible maternity leave is up to the worker, provided there is a certificate from the doctor or, in some cases, from the doctor responsible for safety in the workplace, which certifies the absence of risk to the health of the worker. But maternity is also an obligation for the mother, even in the presence of a medical certificate attesting to the good health of the worker.

The request

The future working mother can be assisted in submitting the application for compulsory abstention from a patronage or from the INPS contact center (toll-free number 803164 or 06164164 from a mobile phone). Or apply independently through the INPS website using your personal INPS PIN. First of all, you must submit to your employer the document certifying the presumed date of birth (drawn up by a doctor): aware that this is only a hypothetical indication, and that the birth could actually deviate from the date indicated, it is however the basic element that allows the period of absence from work to be counted. The employer must then be given the application that the worker will make to INPS, as well as the birth certificate, which will precisely confirm the months of abstention.

Maternity leave, an obligation

The employer cannot choose whether or not to grant maternity leave, it is a constraint imposed at the regulatory level by art. 16 Legislative Decree 151/2001. The law provides that the expectant mother can take advantage of the 2+3 month formula, or opt for the so-called flexible solution of 1+4 months, or directly for the 5 months after the birth.

Maternity leave in case of abortion
If the abortion occurs within 180 days of the beginning of the pregnancy, the event will be treated as an illness; if it occurs after the 180th day, it will instead be considered childbirth, with consequent recognition of the right to maternity leave and the related economic welfare treatment. In any case, the worker can decide to return to work by renouncing the leave, subject to 10 days' notice to the employer and without prejudice to a certification, drawn up by the doctor, authorizing the return

Taken from Born Mom - by Carlotta Cordieri