The Brazilian Supreme Court (“STF”) determined, in November of 2022, the extension of the period of maternity leave for mothers of newborns who remain hospitalized for more than two weeks.[1] The decision was taken in the judgment on the merits of the Direct Action of Unconstitutionality 6,327.
Why is this discussion relevant in Brazil?
Only in 2019, 300,000 premature births were registered in Brazil – 10th in the world prematurity ranking, according to data from the National Health Agency. In addition, 11.7% of the childbirth in Brazil occur prematurely before 37 weeks of gestation.
It is also important to consider the number of hospitalizations that exceed two weeks. In the most extremes cases of prematurity – there are pregnancies that do not exceed 24 weeks and the hospital discharge takes place, on average, only after 34 weeks.
The central question is what the date of the beginning of maternity leave would be: the date of hospital discharge or the date of birth. This is because, until then, there were several judicial discussions on the subject. Often, the understanding was that the date to be considered for the beginning of the maternity leave count should be that of childbirth, even in cases of long hospitalizations of the mother and newborn.
What changes with the STF's decision?
When analyzing the theme, the STF decided that counting from the date of the childbirth in cases of long hospitalizations of the mother and newborn is discriminatory. In such cases, the period of 120 days of maternity leave (or 180 days for companies that benefits from Law No. 11,0/2008, which implemented the Citizen Company Program) should begin only when the mother and newborn discharge from the hospitalization.
In practice, the extension of leave will apply to employees whose newborn children remain hospitalized for more than two weeks. The license count should be initiated on the date of medical discharge of the employee or newborn, or what happens last.
The costs will be convered by Social Security, and the procedures for payment will be the same as the maternity salary. The application must be made on the date of the childbirth or up to 28 days before delivery.
Only in cases of hospitalizations longer than two weeks, the mother must request the extension of the benefit to the employer, who will continue paying for the entire period of hospitalization until 120 days after the date of hospital discharge (or 180 days, for companies that benefits from Law No. 11,0/2008, which implemented the Citizen Company Program). Compensation will be made later in accordance with the law.
In case of hospital discharge and new hospitalization due to the childbirth, it will be up to the employee to request new extensions – which will suspend the leave for each new hospitalization – until the 120-day period of coexistence with the child is completed.
Considering the new rules and the enforceability of the STF's decision, companies should evaluate the impacts on their internal practices and policies – especially benefits linked to the period of maternity leave.
The decision does not address extraordinary situations involving, for example, cases of congenital diseases that could lead to very long periods of hospitalization.
This may raise doubts: what does the situation look like when employees remain with newborns who stay two or even three years in hospital? What is the impact of leave on the employee's career? And the promotions? What is the impact on variable compensation and profit sharing programs?
Given the gap left by the decision, how should the company act in cases where the mother seeks to return to work, but is prevented from working due to the impossibility of renouncing her license? What will her relocation be like after years away?
It is essential for companies to be prepared to face cases like these.
[1] Articles 392, §2, of the Brazilian Labor Law - CLT, and Article 93, §3, of Decree 3,048/99.
