SOME NOTES ON SPECIAL LEAVES

I term these leaves ‘special’ in the sense that they are granted not by the Labor Code but by
various special laws (paternity act and solo parent’s welfare act) or ‘embedded’ in codes (SSS
Law, VAWC and Magna Carta for Women). They are also 'special' in the sense that they are
granted only to employees who qualify as beneficiaries or when certain contingencies occur,
unlike SIL which is generally applicable to all who have rendered one (1) year of service. The
special laws all aim to put into effect societal goals, but placed the economic burden on the
employers.

These special laws, unfortunately, are not always consistent with each other on specific aspects
(e g. service requirement) and even the implementing regulations do not always clarify certain
vague items that make admistering them problematic.

I. Maternity Benefits

RA 8282, Social Security Law as amended (1996)

"SEC. 14‐A. Maternity Leave Benefit. ‐ A female member who has paid at least three (3)
monthlycontributions in the twelve‐month period immediately preceding the semester of her
childbirth ormiscarriage shall be paid a daily maternity benefit equivalent to one hundred
percent (100%) of heraverage daily salary credit for sixty (60) days or seventy‐eight (78)
days in case of caesarean delivery, subject to the following conditions:

Comments:

 Unique among the special leaves, maternity leave benefit is paid not by the employer
but by the SSS. Thus, the requirement not of length of service but of updated SSS
contributions (18 months’ contributions)

 The payment is advanced by the employer which has the task of determining the
qualification of the beneficiary. The employer runs the risk of not being reimbursed by
the SS, if it turns out the employee is not qualified. In such case, may the employer seek
compensation from the employee? If so, can it be done through salary deduction?

 The 4‐deliveries/miscarriages limit is in line with the government’s population control

policy. But since a miscarriage does not result in live birth or increase in population,
should the law still count it as part of the limit (as a matter of policy, not of law)? The
same issue is raised with respect to child which does not survive for 24 hours.

 Marital status is not a qualification.

 Since this is income benefit based on insurance, the compensation will not be equivalent
to an employee’s monthly salary. Per the latest SSS contribution table, the maximum
amount for normal delivery would be Php32K and P41.6k for caesarian delivery. Some
employers pay for the difference (in part or in full), either as company policy or thru
CBA.

 Payment of maternity benefit is bar to claims for sickness benefit (administered also by
the SSS) for the same period covered by the leave.

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  Maternity leave benefits, not being compensation paid by the employer, is not taxable
(NIRC, Sec. 32[B][6][e]). It is also not considered in the computation of the employee’s
13th month pay.

 A question was raised whether previous deliveries or miscarriages in which maternity

leaves were not paid (e.g., because the employee was not qualified then) should still be
counted in the 4‐deliveries/miscarriage limit. It is opined that they should count, since
excluding such instances would be inconsistent with the population control policy
underlying the limit.

 If the employee gets pregnant more than once in a year (whether calendar year or not),
can she avail of maternity leave benefits for each contingency? There is no limitation of
this sort provided in the law, only the 4‐deliveries limit.

II. Paternity Leave

RA 8187, Paternity Leave Act

Section 3. Definition of Term. - For purposes of this Act, Paternity Leave refers to the benefits
granted to a married male employee allowing him not to report for work for seven (7) days
but continues to earn the compensation therefor, on the condition that his spouse has
delivered a child or suffered a miscarriage for purposes of enabling him to effectively lend
support to his wife in her period of recovery and/or in the nursing of the newly-born child.

Comments:

 The exclusions provided by Art. 82 and Art. 95 of the Labor Code do not apply, in the
absence of any provision in the Paternity Leave Act adopting these codal provisions.

 Marital status and cohabitation are qualifications, presumably because the law’s
rationale is not merely limited to the child’s welfare but the status of marriage as
foundation of society.

 The law does not disqualify polygamous marriages (Muslims).

 The 4-deliveries (defined as childbirth or miscarriage) limit also applies.

 There is no minimum service requirement; present employment relationship is sufficient.

This is in contrast to SIL, solo parent, and gynecological leaves.

 Since the authorized leave is paid by the employee (“full pay”) by way of non-deduction
from his salary, the amount is treated as taxable income (assuming the income is not
minimum wage).

 What if there is more than one delivery in a year (either by one spouse or by more than
one spouse)? As long as it is within the 4-deliveries limit, the employee should be
allowed to avail of the benefit.

 The 4-deliveries limit is not specific to a particular employer or to a particular spouse.

 The 7-day leave not need be continuous, and the DOLE allows employers the
prerogative to schedule the leave before or after delivery. There is no specific time frame
in which the leave (counted from the delivery) must be taken. “Reasonable period of
time” is the standard laid down by the DOLE. Like all leave polices, employers would
have the management prerogative to set mechanics for administration of paternity leave.

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  Unutilized paternity leave cannot be monetized. Can they be accumulated, for future
deliveries? The law and the IRR are silent. A prudent employer would stipulate a specific
policy on this issue.

III. SOLO PARENT LEAVE

RA 8972, Solo Parents Welfare Act

Sec. 8. Parental Leave. - In addition to leave privileges under existing laws, parental leave of
not more than seven (7) working days every year shall be granted to any solo parent
employee who has rendered service of at least one (1) year.

Comments:

 The exclusions provided by Art. 82 and Art. 95 of the Labor Code do not apply, in the
absence of any provision in the Paternity Leave Act adopting these codal provisions.

 “Solo parent” has a technical definition, and the beneficiary need not be a parent
himself/herself.

 The one‐year service requirement is aligned with the SIL provision in the Labor Code.
Logically, the definition of ‘one‐year service “in the IRR on SIL should also apply.

 Marital status is not a requirement in all cases.

 The employee must secure a Solo Parent ID from the DSWD, as proof of status as such.

Sec. 3. Definition of Terms. - Whenever used in this Act, the following terms shall mean
asfollows:

(a) "Solo parent"- any individual who falls under any of the following categories:

(1) A woman who gives birth as a result of rape and other crimes against chastity even
without a final conviction of the offender: Provided, That the mother keeps and raises the
child;

Comments:

 The other crimes could be seduction and abduction

 Should this cover also adultery and concubinage, in which the woman employee would
be principal by indispensable cooperation? It is opined that the privilege should not be
granted, on the principle that crime does not pay. That it. The privilege should only be
available to victims, not perpertrators.

 Should there be at least an Information filed in court? Or would filing at the prosecutor’s
office or even police blotter report be sufficient? The IRR does not explain.

 If the victim has a spouse (not the father of the child), could she still avail of the eave
benefit?

(2) Parent left solo or alone with the responsibility of parenthood due to death ofspouse;

Comments:

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  There is no one‐year requirement for the death of the spouse.

 If the employee remarries, does this negate solo paremnt status? What about of the
emplyee merely engage in common‐law relationship?

(3) Parent left solo or alone with the responsibility of parenthood while thespouse is detained or
is serving sentence for a criminal conviction for at least one (1) year;

Comment:

 Does the one‐year period requirement also apply to detention (no conviction yet)?

(4) Parent left solo or alone with the responsibility of parenthood due to physicaland/or mental
incapacity of spouse as certified by a public medical practitioner;

Comment:

 Does the one‐year period requirement also apply in this particular situation, given that
there is no mention of it as compared to other situations?

(5) Parent left solo or alone with the responsibility of parenthood due to legalseparation or de
facto separation from spouse for at least one (1) year, as long as he/she is entrusted with the
custody of the children;

Comments:

 Does the one‐year requirement apply only to de facto separation, or likewise to legal
separation?

 May an employee avail of the leave benefit when the parents divide the custody of
children?

(6) Parent left solo or alone with the responsibility of parenthood due todeclaration of nullity or
annulment of marriage as decreed by a court or by a church as long as he/she is entrusted with
the custody of the children;

Comments:

 If the parent is "left solo or alone with the responsibility of parenthood due to
declaration of nullity or annulment of marriage as decreed by a court or by a church",
does it not necessarily follow that "he/she is entrusted with the custody of the
children" ?

 May an employee avail of the leave benefit when the parents divide the custody of
children?

 Does the one‐year requirement apply in this case of nullity of marriage?

(7) Parent left solo or alone with the responsibility of parenthood due toabandonment of spouse
for at least one (1) year;

Comments:

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  If the other spouse provides financial support but no longer lives with the family, is the
employee entitled to solo parent leave?

 Is the spouse of an OFW with contract for at least a year be entitled to solo parent leave,
despite the fact that there is no case of abandonment?

(8) Unmarried mother/father who has preferred to keep and rear her/his child/children instead
of having others care for them or give them up to a welfare institution;

Comments:

 Does this refer only to employees without partners, and excludes common‐law
relationhips (including same‐sex relationships in which one or both partners would have
children)?

 If the employee gives up the care of some but not all of the children, would the
employee be still entitled to the solo parent leave?

(9) Any other person who solely provides parental care and support to a child orchildren;

Comments:

 Per the IRR, this refers only to DSWD‐accredited foster parent (there is a special law on
foster parenthood) and court‐appointed guardians.

(10) Any family member who assumes the responsibility of head of family as a result of the
death, abandonment, disappearance or prolonged absence of theparents or solo parent.

Comments:

 For consistency, "abandonment" and "disappearance or prolonged absence" in this

situation should also be subject to the one‐year requirement.

 Death should not be subject to the one‐year requirement, similar to the other case of
death mentioned above.

 The IRR limits the "family member" up to the 4th degree of consanguinity.

A change in the status or circumstance of the parent claiming benefits under this Act, such
that he/she is no longer left alone with the responsibility of parenthood, shall terminate his/her
eligibility for these benefits.

Comments:

 If the employee remarries but the new spouse does not adopt the employee's children,
may the employee be still entitled to the solo parent leave?

 If the employee merely engages in common‐law relationship (or enters into same‐sex
relationship), is the employee still entitled to solo parent leave?

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  If the employee possesses sa Solo Parent ID but the employer has reason to believe that
he/she does not qualify as such, what should be the proper thing for the employer to do
in case the employee files an application for parental leave?

(b) "Children" - refer to those living with and dependent upon the solo parent for support who
are unmarried, unemployed and not more than eighteen (18) years of age, or even over
eighteen (18) years but are incapable of self-support because of mental and/orphysical
defect/disability.

Comments:

 If the child or all of the children are over 18 years old but are still incapable of self‐
support because they are still studying ( perhaps taking up JD at the SSRCL), should the
single employee be still entitled to the parental leave?

 Was it proper for the law to set 18 years old as the threshold, when even before K‐12 the
normal graduation age at college was 20 years? With K‐12, Filipinos would normally
finish college at 22 years and only then will most of them work.

(c) "Parental responsibility" - with respect to their minor children shall refer to the rights and
duties of the parents as defined in Article 220 of Executive Order No. 209, asamended,
otherwise known as the "Family Code of the Philippines."

(d) "Parental leave" - shall mean leave benefits granted to a solo parent to enable him/her to
perform parental duties and responsibilities where physical presence is required.

Comments:

 Examples of instances where "physical presence is required": vaccination/immunization;

medical consultation; enrollment; field trips and other school activities; PTA meetings;
child care; first communion.

 Who determines whether physical presence is required? The employer, or the

employee?

(e) "Flexible work schedule" - is the right granted to a solo parent employee to vary his/her
arrival and departure time without affecting the core work hours as defined by the employer.

Comment:

 What does "core work hours" mean?

IRR

Section. 19. Conditions for Entitlement of Parental Leave. — A solo parent shall be entitled
to parental leave provided that:

(a) He/She has rendered at least one (1) year of service whether continuous or broken at the
time of the effectivity of the Act

Comment:

 The definition in the IRR of service incentive leave could be adopted for solo parent
leave, viz: The term "at least one‐year service" shall mean service for not less than 12
months, whether continuous or broken reckoned from the date the employee

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 started working, including authorized absences and paid regular holidays unless the
working days in the establishment as a matter of practice or policy, or that provided
in the employment contract is less than 12 months, in which case said period shall be
considered as one year".

b) He/She has notified his/her employer of the availment thereof within a reasonable time
period; and

(c) He/She has presented a Solo Parent Identification Card to his/her employer.

Comment:

 Is the Solo Parent ID conclusive on the employer, or is the employer allowed to contest
the employee's solo parent status? If there is a dispute, what agency should handle the
dispute?

Section 20. Non-conversion of Parental Leave. — In the event that the parental leave is not
availed of, said leave shall not be convertible to cash unless specifically agreed upon previously.
However, if said leave were denied an employee as a result of non-compliance with the
provisions of these Rules by an employer, the aforementioned leave may be used as a basis for
the computation of damages.

Comments:

 Allowing monetization of parental leave, which the regulations permit the employer to
do , would seem inconsistent with the objective of the law. The law is intnded to prevent
loss of income, not a source of additional income.

 In contrast, the special laws are silent on allowing cash conversion of paternity leave
and VAWC leave.

 Can unused parental leave be accumulated? The law is also silent, unlike VAWC leaves
which the IRR says are "noncumulative and not convertible to cash".

 What does the sentence "However, if said leave were denied an employee as a result of non-
compliance with the provisions of these Rules by an employer, the aforementioned leave may
be used as a basis for the computation of damages" mean? What provisions of the IRR are
contempelated to have not been compllied with? What is the employee's recourse?
Where does the employee file a case?

IV. VAWC LEAVE

RA 9662, VAWC Law

Sec. 43.Entitled to Leave. – Victims under this Act shall be entitled to take a paid leave of
absence up to ten (10) days in addition to other paid leaves under the Labor Code and
Civil Service Rules and Regulations, extendible when the necessity arises as specified in
the protection order. Any employer who shall prejudice the right of the person under this
Section. shall be penalized in accordance with the provisions of the Labor Code and Civil
Service Rules and Regulations. Likewise, an employer who shall prejudice any person for
assisting a co-employee who is a victim under this Act shall likewise be liable for discrimination.

Comments:

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  "Paid leave of absence" would mean there would be no deduction on the employee's
salary for the absence from work.

 "Victims" would refer to "any woman who is [the offender's] wife, former wife, or
against a woman with whom the person has or had a sexual or dating relationship, or
with whom he has a common child" ( Section 3).

 The period of extension need not be paid, although the absence would be authorized
(and therefore not subject to disciplinary sanction).

 Should the law allow the employer to recover compensation from the offender for the
VAWC leaves?? Had the law not imposed the economic cost on the employer, the loss of
income due to absences could probably be claimed by the victim against the offender as
part of actual damage.

IRR

Section 42.Ten-day paid leave in addition to other leave benefits. - At any time during the
application of any protection order, investigation, prosecution and/or trial of the criminal case, a
victim of VAWC who is employed shall be entitled to a paid leave of up to ten (10) days in
addition to other paid leaves under the Labor Code and Civil Service Rules and
Regulations and other existing laws and company policies, extendible when the
necessity arises as specified in the protection order. The Punong Barangay/kagawad or
prosecutor or the Clerk of Court, as the case may be, shall issue a certification at no cost to
the woman that such an action is pending, and this is all that is required for the employer
to comply with the 10-day paid leave. For government employees, in addition to the
aforementioned certification, the employee concerned must file an application for leave citing as
basis R.A. 9262. The administrative enforcement of this leave entitlement shall be considered
within the jurisdiction of the Regional Director of the DOLE under Article 129 of the Labor Code
of the Philippines, as amended, for employees in the private sector, and the Civil Service
Commission, for government employees. The availment of the ten day-leave shall be at the
option of the woman employee, which shall cover the days that she has to attend to
medical and legal concerns. Leaves not availed of are noncumulative and not convertible
to cash. The employer/agency head who denies the application for leave, and who shall
prejudice the victim-survivor or any person for assisting a co-employee who is a victim-survivor
under the Act shall be held liable for discrimination and violation of R.A 9262. The provision of
the Labor Code and the Civil Service Rules and Regulations shall govern the penalty to be
imposed on the said employer/agency head.

Comments:

 It appears that what must be stated in the protection order is the necessity of the
extension, not the taking of the VAWC leave itself ( which should be the call of the
employee).

 It does not seem necessary that the "victim" prove the validity of the suit, as the IRR
states that "The Punong Barangay/kagawad or prosecutor or the Clerk of Court, as the case
may be, shall issue a certification at no cost to the woman that such an action is pending,
and this is all that is required for the employer to comply with the 10-day paid leave".

 Notwithstanding the above, it is opined the employer may still assess whether the
intended leave is for the purpose of "attend[ing] to medical and legal concerns."

 The IRR is explicit that "[VAWC] leaves not availed of are noncumulative and not
convertible to cash". But can accumulation and monetization be agreed upon by the

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 employer and the employee? Would such agreement be void for being contrary to law
and public policy?

V. Gynecological Disorder Leave

RA 9710, Magna Crta For Women

Section 7.

M. “Gynecological disorders” refers to disorders that would require surgical procedures such
as, but not limited to, dilatation and curettage and those involving female reproductive organs
such as the vagina, cervix, uterus, fallopian tubes, ovaries, breast, adnexa and pelvic floor, as
certified by a competent physician. For purposes of the Act and these Rules and Regulations,
gynecological surgeries shall also include hysterectomy, ovariectomy, and mastectomy;

SEC. 18.Special Leave Benefits for Women. – A woman employee having rendered
continuous aggregate employment service of at least six (6) months for the last twelve
(12) months shall be entitled to a special leave benefit of two (2) months with full pay
based on her gross monthly compensation following surgery caused by gynecological
disorders.

Comments:

 This medical surgery is in the nature of illness, and perhaps should be treated as a
contingency under the SSS law (like maternity leave benefit). The employer should not
be made the insurer of the employee's health condition.

 The gynecological eave is a greater burden to emplyers than the maternity leave benefit,
not only because it is paid by the employer but also because it is equivalent to the
employee's "full pay based on her gross monthly compensation" plus "mandatory
allowances".

 Since this is not an SSS income benefit, this paid leave is taxable ( unless the emlyee
receives minimum wage ony).

 The term "continuous aggregate employment service' is confusing and seemingly self‐
contradictory. "Continuous" means "forming an unbroken whole without interruption"
while "aggregate" means "a whole formed by combining several ( typically disparate)
elements" and the latter thus strongly suggests a gap or interruption. How can
something "continuous" be at the same time an "aggregate "?

 It was suggested/opined during the lecture that the phrase means the employment
service is 'continuous aggregate" in the sense that authorized absences ( like paid or
unpaid medical leaves) are the 'gaps' in the employment service but they do not negate
the "continuous" nature of the employment service since these absences do not sever
or cause interruption of the employer‐employee relationship.

 The suggested interpretation does not do away with some other questions. Should
authorized absences (whether paid or unpaid) be computed as part of the 6‐month
service? The law and the IRR should have followed the lead of the IRR on service
incentive leave whcih explicitly included "authorized absences and holidays" as part of
the "one year service".
DOLE Department Order No. 112-11, Series of 2011.

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Conditions

All women employees in the private sector, regardless of age and civil status, are entitled to
special leave benefits, provided she has complied with the following conditions:

1.She has rendered continuous aggregate employment service of at least 6 months for the
last 12 months;

Comments:

 The DOLE advisory merely restated the confusing "continuous aggregate employment
service" phrase.

 The Civil Service Commision (CSC) is seemingly aware of the vague nature of the
"continuous aggregate" phrase, so much so that in its own IRR for government
employees it deleted the word "continuous and defined the qualification thus:" ...
provided she has rendered at least 6 months aggregate service in any or various
govenrment agencies for the last 12 months prior to undergoing surgery."

2.She has filed an application for special leave;

3.She has undergone surgery due to gynecological disorders as certified by competent

physician.

Procedure
The employee shall file her application for leave with her employer within a reasonable period of
time from the expected date of surgery, or within such period as may be provided by company
rules and regulations or by collective bargaining agreement (CBA).

Prior application is not necessary in cases requiring emergency surgical procedure. However,
the employee must notify the employer verbally or in writing within reasonable period of time,
and after the surgery or recuperating period, she must immediately file her application using the
prescribed form.

Time Frame

Special leave benefits shall be granted after the employee has undergone surgery. The
employer, however, has the option to pay the employee before or during the surgery.

Benefit
The employee is entitled to full pay for two months based on her gross monthly compensation.
Gross monthly compensation refers to the monthly basic pay plus mandatory allowances.

Comment:
 If the employee also avails of maternity leave and/or sickness leave benefits under the
SSS, could she still avail of the gynecological leave benefit?

Non-convertability

Special leave benefit is non-cumulative and non-convertible to cash unless otherwise provided
by a CBA.

Comments:

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 Allowing accumulation and monetization of gynecological leave defeats the purpose of
the law.

 The leave is supposed to prevent loss of income, not a source of additional

income.PFFALLAR JR SSRCL

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