Combining work with parental leave, part 1 - basic information
Parental leave is a special time for parents to spend on caring for their child. Until recently, the time that parents (mainly the child's mother) could spend with a newborn family member was less than half a year. Only the last few years have brought changes for the better from the parent's point of view. Currently, he can spend the whole year with the child, parents can share the leave, they can also take advantage of the convenience of combining work with parental leave, which we will write more about in this and the following articles on this issue. We invite you to read.
Who is entitled to parental leave and to what extent?
The employee who used the maternity leave has the right to parental leave. The amount of parental leave is:
32 weeks - in the case of giving birth to one child in one delivery
34 weeks - if more than one child is born at one time.
Respectively, the above periods apply when one or more children are accepted for upbringing. In such a case, parental leave is granted until they turn 7 years old or, in the case of a decision to postpone compulsory education, until they turn 10 years old.
It is worth noting here that both parents of the child are entitled to parental leave.
Parental leave must be taken immediately after maternity leave, it is a prerequisite for entitlement to it. On the other hand, the legislator gives parents some freedom during the parental leave, because it can be selected in full at once or in up to four parts. It is worth adding that each part of the parental leave may not be shorter than 8 weeks, with the exception of the birth of one child, then the first part of the leave may be 6 weeks, or the case when the last part of the leave to be taken is less than 8 weeks ( the rules for taking the parental leave in parts are described in the Labor Code, Article 182 1c). It is also important that these parts must fall one after the other, and the size of each of them must be a multiple of a week. An important piece of information here is the possibility to postpone part of the parental leave of 16 weeks to a later period. The cut-off point is the end of the calendar year in which the child reaches the age of 6. Interestingly, combining work with parental leave also covers the "deferred" part of parental leave.
Organization of working time and combining parental leave with work
Pursuant to Art. 94 points 2 of the Labor Code, the employer is obliged to organize work in such a way as to ensure full use of working time, high efficiency and appropriate quality of work, while employing employees of their qualifications and skills.
This is the only regulation that can be found in the Labor Code regarding work organization in the case of combining work with parental leave. Therefore, in practice, no changes are made to the employment contract, as it is assumed that the employee is still employed full-time. Also the wage specified in the contract will not be changed, because in accordance with Art. 80 of the Labor Code, the employee receives remuneration for the work actually performed. This means that the remuneration that the employee will receive will be proportional to the actual working time, while the remaining time will be qualified as a justified absence in the form of parental leave, for which the employee will receive a maternity benefit.
Combining work with parental leave takes place at the employee's request, but what if the employee wants to resign from this solution before the deadline specified in the application? Again, it is in vain to look for provisions regarding this situation in the Labor Code. Therefore, it is assumed that the provisions of the Civil Code, namely art. 353¹ of the Civil Code on freedom of contract. This means that resignation before the expiry of the deadline specified in the application for combining work with parental leave is possible, but on the basis of mutual agreement of the parties to the employment relationship.
A full-time employee with a salary of PLN 4,000 has been taking parental leave since June 20, 2017. In July, she applied to combine parental leave with part-time work as of August 1.
For July, she will receive a remuneration of PLN 2,000, resulting from the calculation of ½ * PLN 4,000, provided that she will not benefit from other absences that may affect the amount of remuneration for work, and the maternity allowance, the amount and method of calculation of which we will deal with later in the series articles related to combining work with parental leave.
Combining work with parental leave in the context of working time distribution
Bearing in mind the scarce regulations contained in the Labor Code, concerning combining work with parental leave, the procedure in this case is largely based on the guidelines presented by the Ministry of Family, Labor and Social Policy.
As a rule, it is assumed that an employee, combining work with parental leave, continues to work in the same system and schedule of working time as before the parental leave. He works, but on a correspondingly lower level, devoting the remaining time to caring for the child. Therefore, there were doubts as to whether the employer, when organizing working time, is obliged to follow the principle that work is to be performed 5 days a week? And here the position was taken by the Ministry of Family, Labor and Social Policy, in which it explains that work does not have to be performed 5 days a week, that the employer is not formally bound by the employee's request for an individual working time schedule, if the employee proposes to set specific days and working hours in the application for combining work with parental leave, but if it does not cause difficulties in the work process, such an application should be taken into account, because the employer should take into account Art. 8 of the Labor Code, the wording of which is as follows: You cannot make use of your right that would be contrary to the socio-economic purpose of this law or the principles of social coexistence. Such an act or omission of the rightholder is not considered to be an exercise of the law and is not protected.
Unjustified failure to take into account the request for an individual schedule of working time in the employee's application for combining work with parental leave may be considered contrary to the principles of social coexistence.
An employee with a basic working time system, providing for work from Monday to Friday from 8.00 to 16.00, has submitted an application to combine parental leave with part-time work. In the application, the employee indicated that he wanted to work 8 hours on Mondays and Tuesdays and 4 hours on Wednesdays, and use the remaining time for parental leave. The employer may grant the employee's request because it complies with the working time system in the workplace and does not violate the regulations on working time.
If the employee from the example above, in the application for combining work with parental leave, would indicate working days for e.g. Monday and Tuesday 10 hours each, and the rest of the week for taking parental leave, the employer should not consider such an application. The provision of the Labor Code, Art. 178 par. 2 concerning the prohibition of overtime work by an employee caring for a child until the age of 4. In addition, the example workplace has a basic working time system that does not provide for the possibility of working more than 8 hours a day.
The employee may agree to work overtime, despite caring for a child until the age of 4, in accordance with Art. 178 par. 2 of the Labor Code, however, it should be remembered that these overtime hours cannot occur while the parental leave has been taken, as indicated in the employee's application.