In connection with childbirth and the care of a newborn child, a female employee is entitled to maternity leave. The length of maternity leave is generally set at 28 weeks. Maternity leave for a period of 37 weeks is due to a female employee when she gives birth to two or more children at once or when the female employee is a lone parent. The Labour Code considers a lone woman to be a woman who is unmarried, widowed or divorced and a woman who is alone for another serious reason, if she does not live with a partner. Maternity leave in connection with childbirth may never be shorter than 14 weeks and cannot in any case end or be interrupted before the expiry of six weeks from the date of birth. Maternity leave is an important personal obstacle to work on the part of the female employee. The employer is obliged to excuse the absence of the female employee from work due to maternity leave. During maternity leave, the female employee is not entitled to wage compensation. With effect from 1 January 2001, a new institute has been established in the Labour Code – so-called parental leave, which replaced the former institute of so-called additional maternity leave. Parental leave is provided to the mother of a child after the end of maternity leave and to the father of a child from the birth of the child, to the extent requested by them, but not longer than until the child reaches the age of three years. Both parents may also take parental leave simultaneously. The employer must always grant the request of a female employee or male employee for parental leave up to three years of age of the child. A parent may request parental leave for a period shorter than until the child reaches three years of age and, before the expiry of the period of parental leave for which they requested, request an extension of parental leave. Until the time when the child reaches the age of three years, they always have the right for the employer to grant also this further request of theirs.
The maternity leave of a female employee and the parental leave of a male employee provided until the time for which a woman is entitled to take maternity leave is always assessed as performance of work, including for the purposes of annual leave. Parental leave taken to an extent beyond the length of maternity leave is assessed for the purposes of annual leave as time missed.
During the taking of maternity and parental leave, parents are not entitled to wage compensation. They are only entitled to sickness insurance benefits and state social support benefits. The basic benefits are:
Cash maternity benefit is regulated in Act No. 88/1968 Coll., on the extension of maternity leave, on maternity benefits and on child allowances from sickness insurance. Cash maternity benefit is due to a female employee for the duration of maternity leave. If a woman has been permitted an interruption of cash maternity benefit, entitlement to cash maternity benefit arises for her husband. Parental allowance is regulated in Sections 30 to 32 of the Act on State Social Support. Parental allowance may be provided up to four years of age of the child, provided the parent personally provides full-day and proper care for this child. In the case of a child who is long-term disabled or long-term severely disabled, parental allowance may be provided up to seven years of age of the child. However, after the child reaches three years of age, parents no longer have the right for the employer to provide them with time off work. Under Section 128 of the Labour Code, they may request time off work from the employer without wage compensation, but it depends on the will of the employer whether they provide them with time off.
It should be noted that where both parents care for one child, parental allowance is due to only one of them, and further, that parental allowance is not due to a parent if in the family the other parent is entitled for a whole calendar month to cash maternity benefit or other cash benefit provided under the provisions of sickness insurance. This means that even if both parents stay at home with the child, only one of them will receive the relevant benefit for the child.
Return to work after the end of maternity leave or parental leave taken to the extent of maternity leave of a female employee Where a female employee returns to work after the end of maternity leave or a male employee after the end of parental leave to the extent of the period for which a woman is entitled to take maternity leave, the Labour Code grants them the right to be assigned to their original work and workplace.
If this is not possible because this work has ceased or the workplace has been abolished, the employer must assign them to other work corresponding to their employment contract. If the employer cannot assign work to the employee according to the employment contract because it does not have work corresponding to the employment contract, it may agree with the employee on an amendment to the employment contract. If it does not agree with the employee on an amendment to the employment contract and the employee does not perform other work, this will constitute another obstacle to work on the part of the employer under Section 130 of the Labour Code. In such a case, the employer is obliged to provide the employee with wage compensation in the amount of average earnings, for the entire period during which the employer does not assign work to the employee. An obstacle to work on the part of the employer also exists where the employer does not assign work to the employee according to the employment contract for objective reasons which it cannot influence in any way.
The situation of the employer is complicated in this case by the fact that at the time when the female employee or male employee permanently care for a child under three years of age, they are in the so-called protected period and the employer cannot, except in exceptional cases, give them notice. A female employee or male employee who is in the protected period due to permanent care for a child under three years of age may be given notice only for a reason for which the employer may immediately terminate the employment relationship, or for reasons of organisational changes under Section 46(1)(a) and (b) of the Labour Code, i.e. where the employer or part thereof is being abolished or relocated.
Even more strongly protected are female employees during the taking of maternity leave and male employees during the taking of parental leave to the extent of the maternity leave of the mother. Such a female employee or male employee cannot be given notice even for a reason for which the employer could immediately terminate the employment relationship. If notice was given to them for such a reason even before they commenced maternity or parental leave and the notice period would end during maternity or parental leave, the notice period shall end simultaneously with the maternity or parental leave.
If a female employee wishes to commence work even before the end of ordinary maternity leave or a male employee after taking parental leave for a period shorter than maternity leave and they did not agree in advance with the employer that they would return before its end, in my opinion the employer is not obliged to assign them work before the expiry of the period of maternity leave. This will be practical especially where the employer has taken on another employee as a replacement in their place for the duration of maternity leave, and is obliged to assign work to this substitute employee. However, as soon as the period of maternity leave expires, the employer is obliged to assign them to their original work and workplace and, if this is not possible for objective reasons, to assign them work according to the employment contract.
Return to work after the end of parental leave taken to the extent of parental leave of a female employee A male employee or female employee who returns to work after taking parental leave to the extent of parental leave of a female employee is also protected by the Labour Code, but their protection is somewhat weaker than protection after returning to work from maternity leave or from parental leave taken to the extent of maternity leave. In this case, the male employee or female employee has, in accordance with Section 35(1)(a) of the Labour Code, the right for the employer to assign them work according to the employment contract, but they no longer have the right to be assigned to their original work and workplace.
Also in this case it applies that if the employer cannot assign work to the employee according to the employment contract, it may agree with the employee on an amendment to the employment contract and, if they do not agree on an amendment to the employment contract and the employee does not perform other work assigned by the employer, this constitutes a so-called other obstacle to work on the part of the employer and the employer is obliged to provide the employee with wage compensation in the amount of average earnings.
However, the position of the employee is weaker in this case and the position of the employer is stronger. In this case, the employer may give the employee notice for a reason for which it could immediately terminate the employment relationship with them and, moreover, if the employee’s child has reached the age of three years, the protected period has thereby ended. If the employee is no longer in the protected period, the employer may terminate the employment relationship with them by notice for all reasons set out in Section 46 of the Labour Code. Among other things, in this case the employer may also give the employee notice for the reason set out in Section 46(1)(c) of the Labour Code, i.e. for the reason of redundancy of the employee, which in the case of the employee’s return from parental leave will very often come into consideration.
This text was translated from Czech to English using an AI translator.