The rules of birth leave

28/06/2018 by Hicham HMICHE

     


birth leave

Introduction

When a child is born, a number of rights are granted to the biological father, as well as to the mother's spouse in the event of a separation. These rights may take the form of days off, the employer being unable to refuse to grant them except in exceptional circumstances.

Who are the persons concerned, for how long?

Birth leave: what rights?

Article L3142-1 of the Labour Code recognizes birth leave as a right for every employee, regardless of the type of employment contract. Thus, the male referent can either be the father of the child or the spouse. In the first as in the second case, it is not important to know the nature of the union with the child's mother - marriage, cohabitation, or even civil solidarity pact - PACS. Thus, the father may be either married to the child's mother, or in cohabitation, divorce or separation. Similarly, the spouse (who is not the child's father) may be the husband or the person bound with the child's mother by a civil solidarity pact.

What can be the duration of the birth leave?

The minimum duration granted during a birth leave is 3 days, but this duration may vary according to the agreements in place in the company. Thus, article L3142-4 of the Labour Code provides for an extension of the duration of childbirth leave if a collective agreement or a company agreement so allows. However, a distinction must be made between childbirth leave, paternity leave (which concerns only the father of the child) and childcare leave - which concerns only the spouse who is not the biological father. Indeed, the durations may vary from one situation to another, the child's foster care leave (which takes place after the birth leave) lasting a maximum of 11 calendar days - 18 days in the case of a multiple birth (This may be the birth of twins, triplets, etc...).

The periods applicable in the event of adoption

In the context of the adoption of a child by the couple, it should be noted that the same durations systematically apply. Thus, adoption leave that is similar to childbirth leave is likely to be combined with adoption leave, which corresponds to paternity leave.

When can I take birth leave?

If the legislation does not require leave to be taken on the same day as the birth, it is nevertheless advisable for the employee to agree a date with the employer, if possible soon after the birth. In addition, article L1225-28 of the Labour Code stipulates that paternity leave or childcare leave must be taken within 4 months of the birth. An exception may be made depending on the family situation - death of the biological mother or hospitalization of the child.

Birth leave: what procedure to obtain it?

To benefit from birth leave, the employee must certify the birth by providing his employer with a document certifying the arrival of a child in the household. Most often, this document takes the form of a birth certificate, issued simply by the town hall. The employer is required to give at least one month's notice of the situation in order to allow the employee to obtain paternity or foster care leave. Similarly, proof of birth must be provided.

Birth leave: what are the main principles?

About working time and remuneration

Birth leave is considered to be similar to actual working time - in other words, as days normally worked within the company. This specific period is therefore taken into account in calculating the duration of paid leave over the year. It should be noted in passing that the employee's remuneration during this period remains the same. Article L3142-2 of the Labour Code also provides that the duration of parental leave shall not be deducted from the duration of annual paid leave.

On the other hand, and with regard to actual working time, it should be noted that paternity leave or foster care leave refers to a suspension of the employment contract. It cannot therefore be assimilated to actual working time. To obtain remuneration, the employee can go directly to the Caisse Primaire d'Assurance Maladie, or to his employer, who will then be directly reimbursed by the CPAM.

What are the remedies in case of refusal of birth leave?

In all cases, the employer cannot refuse the employee's birth leave, even if it is taken on RTTs. If the employee notices such a situation, he must be able to refer it to the Labour Court, which is able to rule on the matter in summary proceedings, i.e. not through an accelerated procedure. The employee can thus hope to obtain a settlement of the situation within a few hours or even a few days at most. For any question relating to this situation, it is advisable to refer to the Labour Code, more precisely to article L3142-3 of the Labour Code.

Conclusion

The arrival of a child in the home is often the source of a challenge to the organization for active parents. The newly-parented employee must therefore be able to master the legal framework of this leave, both in terms of duration and the nature of the compensation. We can thus see that whatever the situation of the mother's spouse (biological father or not), birth leave applies and thus allows the male referent to have rights vis-à-vis his employer. It seems important to be able to specify these rights, as they apply specifically according to the nature of the situation - it may be a multiple birth or an adoption. In all cases, taking parental leave prohibits the exercise of another professional activity during this period, except in the case of maternal assistant activity.



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