Maternity leave is a traditional work interruption, which according to Czech legislation is granted exclusively to mothers (women). This is already clear from the name of this obstacle. However, it does not mean that men cannot take time off work due to the birth of a child. They can take paternity leave and parental leave from the first day of their child’s birth, which we will come to later.
The purpose of maternity leave is to protect the health of the expectant mother and to ensure the healthy development of the newborn. As a rule, it is taken 6-8 weeks before the expected date of birth. The question is whether it is permissible for an employee not to take maternity leave at all if she does not wish to do so. Unfortunately, legal opinions differ on this matter and the question cannot be answered unequivocally, as it is not explicitly addressed in the Labour Code. However, once a woman has taken maternity leave, it is no longer a matter of dispute how long she must take maternity leave. The total duration must not be less than 14 weeks and maternity leave cannot be terminated before the expiry of 6 weeks after the birth.
Maternity leave is one of the obstacles to a woman returning to her original job, i.e., not only to the same position under the employment contract but also to the same workplace. The exception is, of course, where the original workplace has been closed.
It is also worth mentioning that if the employee was on probation before taking maternity leave, the employer can theoretically terminate the employment relationship with her (during the probationary period), however, according to the Supreme Court’s judgment 21 Cdo 2195/2008, the employer may not do so because of the employee’s pregnancy. The generally perceived “absolute” freedom to terminate the employment relationship during the probationary period does not apply, because such termination would be discriminatory according to the aforementioned judgment.
Parental leave normally follows maternity leave. It is intended to deepen the care of the child. The special feature is that both parents can take it at the same time. The mother always takes maternity leave after the birth of the child, and the father from the birth of the child. Parental leave can be taken until the child is 3 years old. If the employee requires longer leave, this must be agreed upon with the employer through the traditional unpaid leave.
Until 30.11.2022, parental leave had to be formally used in cases where the father claimed paternity benefits and wanted to stay at home with the child and his mother (spouse). Until then, paternity leave did not exist as an obstacle to work.
Interestingly, the right to parental leave arises only if the person concerned actually cares for the child. Therefore, parental leave cannot be granted on the sole basis that the person is the biological/legal parent of the child. It should also be noted that legal parenthood takes precedence over the biological aspect. An example is that the biological parents are a married woman and a man who is not her husband. From a legal point of view, in such a case, the husband of the mother of the child is the father of the child, not the biological father.
As to whether it is possible for a parent to apply for parental leave to a lesser extent than the law allows and later to change his or her application and extend the parental leave, there is agreement that it is possible to do so. However, there is less unanimity of opinion as to whether it is possible to do the opposite. Whether an employee can cut short the parental leave originally reported and request to return to work earlier than originally announced.
The law requires the employer to grant the employee’s request to take standard leave between maternity and parental leave. In such a case, it is advisable to note that during the period of leave, there is an interruption of the protection period during which the employee cannot be dismissed or the employment relationship immediately terminated. Also, if the employment relationship with another employee has been concluded for a fixed period of time until the other employee returns from maternity or parental leave, and there is no indication that the employment relationship is also concluded for the period of any leave between maternity and parental leave, then formally the fixed period should end when the maternity leave ends. If the employee continues to attend work and the employer allows the employee to do so, the employment relationship automatically becomes indefinite under Section 65(2) of the Labour Code, from the first day on which the employee takes standard leave.
It is also worth mentioning the Supreme Court’s judgment 21 Cdo 4411/2007, according to which a parent is entitled to leave from work even if the child has already celebrated his/her 3rd birthday, but the parents are unable to place the child in a nursery school or otherwise ensure his/her care. If the employee proves and reports such an obstacle in time, the employee’s absence cannot be classified as an unexcused absence and thus cannot be grounds for dismissal/immediate termination, even if the employer does not agree to the leave.
Formally, this is a fairly new obstacle to work. It can be taken as an obstacle to work by the employee during the period of the paternity benefit, which has been granted in the Czech Republic since February 2018. Until paternity leave as an obstacle to work came into force, fathers had to take parental leave, to which they were already entitled from the birth of the child.
An employee on paternity leave is granted the same protection as an employee on maternity leave (assignment to the original job and workplace, prohibition of dismissal and immediate termination of employment by the employer, right to leave).