Maternity leave extended to fathers
In judgment C-005 of January 18, 2017, the Constitutional Court decided the public action of unconstitutionality filed against numeral 1° of article 239 and numeral 1° of article 240 of the Substantive Labor Code (CST), which establish that: "no female worker may be dismissed for reasons of pregnancy or breastfeeding" and that, "in order to dismiss a female worker during the period of pregnancy or the three months following childbirth, the employer needs the authorization of the Labor Inspector, or of the Municipal Mayor in places where that official does not exist. "
In such lawsuit, the plaintiff warned that the accused norms established a reinforced labor stability for the working woman in a state of pregnancy or breastfeeding, but that such stability did not protect her when she was economically dependent on her spouse or permanent partner, a situation that -in her opinion- disregarded the rights to equality, family, social security, and maternity protection.
The plaintiff based her claim on the jurisprudential development elaborated by the Constitutional Court on the protection that pregnant or breastfeeding women should receive without making any distinction between working women and women who are economically dependent on their spouse or partner.
In this regard, the Office of the Attorney General of the Nation recognized that there was a regulatory vacuum that led to the lack of protection for non-working women, but indicated that: "It is a figure that by its nature should not and cannot necessarily be extended outside the labor sphere, from which it is not up to the Constitutional Court, but to the legislator, to evaluate whether this assumption should be included in the regulations under study".
However, the Court found that there was a protection deficit in relation to the worker who is expecting the arrival of a child, a situation that impacts, in turn, the rights of the pregnant or breastfeeding woman who is not employed and who is economically dependent on her partner, as well as the best interests of the newborn or unborn child, which is why this worker must have a reinforced stability, or a privilege, which prohibits his dismissal without just cause. This privilege is different from the paid paternity leave corresponding to eight (8) working days following the birth of the mother.
Thus, the Chamber concludes that the reinforced labor stability that is guaranteed to the working woman who is pregnant or breastfeeding must be extended to the partner of the woman who is economically dependent on him, in order to protect the best interests of the newborn child and the unborn child, and in the event of the dismissal of this worker, authorization from the Ministry of Labor must be obtained to support a just cause, and the legal indemnities to which a mother dismissed without just cause would be entitled under the same conditions may be applied.
This decision must be carefully regulated by the Government since its implementation may generate serious operational problems for the companies, as stated by the four magistrates who in their dissenting opinions state that the Court's decision invades the legislator's scope of configuration and denaturalizes the maternity leave.
Once the Constitutional Court releases the full text of the aforementioned ruling, this information will be expanded.
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