From pregnancy grief to breastfeeding: lawyer explains what the government wants to change

Last week, the government submitted to social partners the draft reform of labor legislation, which changes over one hundred articles of the Labor Code, four of which relate to parenthood. These measures affect family rights and "create a great deal of anxiety," begins Marta Esteves, a lawyer and parental rights consultant.

The elimination of bereavement leave is one of the measures included in the draft bill that is generating the most criticism, with the opposition lamenting the "attack on families" and the "step backward." The current regime was introduced in 2023 and allows workers to miss up to three days of work without any loss of pay in cases where leave due to termination of pregnancy is not available, explains Marta Esteves. These absences also include the father, who was granted the right to bereavement leave for the first time.

By eliminating these absences, as the Government intends, "women's right to be absent from work due to pregnancy loss is removed, in cases where there is no access to leave, because to access this leave a medical certificate is required - which is not always the case, especially when the losses occur at a very early stage of pregnancy, which does not invalidate the mother's mourning - just as the father's right to mourn due to pregnancy loss is removed", concludes the lawyer and consultant.

Faced with the barrage of criticism the measure generated, the executive branch defended the false claim that it "eliminates women's right to miss work in cases of gestational bereavement." On the contrary, "all pregnant women retain and even increase their rights." The argument is that both the mother, who can take leave due to termination of pregnancy, and the father, who is caring for the family, can take more than the three days stipulated for gestational bereavement.

It turns out, Marta Esteves explains, that in the father's case, "these 15 days are already provided for by law for assistance to a member of the household, with the 15 days being the annual maximum limit for any assistance to the household, and without any pay," unlike the three days for pregnancy bereavement, which correspond to paid absences. Furthermore, "the father's ability to miss work is directly linked to the woman's need for assistance—otherwise, the father would not be entitled to leave."

Regarding breastfeeding, there is currently a right to daily leave for breastfeeding purposes, for the entire duration of breastfeeding. With the proposed labor reform, the government wants to limit this period to the baby's first two years. This means, the consultant clarifies, even if the baby is breastfed beyond that age, on the day the baby turns two, the mother is no longer entitled to daily leave for breastfeeding purposes. Another change the government wants to implement involves requiring a medical certificate proving breastfeeding from the beginning, unlike the current requirement, which only applies from the baby's first year onwards, and is renewed every six months.

The government also intends to limit the right to flexible working hours. In the draft bill presented to the social partners during the social dialogue, the lawyer explains, "it now stipulates that the schedule requested by the employee is a proposal, and the schedule will be effectively drawn up by the employer. Furthermore, the law now stipulates that the employee's proposal must take into account the organization of existing work schedules and the company's operating hours, especially with regard to night and weekend work. This will result in a limitation on requests for flexible working hours for determining shifts and/or days off."

The government also wants to change the initial parental leave regime, but according to lawyer Marta Esteves, how the government intends to do so is still unclear. "The wording of the proposal in this regard is quite confusing and even contradictory, so for some points, it's best to wait for the final version and for clarifications. To clarify whether the new 6-month leave, paid at 100%, proposed by the government requires a sharing of the optional additional 60 days (30 days for the mother and another 30 for the father) or whether, in order to access this leave, the entire leave must be effectively shared, meaning 90 days for the mother and another 90 days for the father, thus totaling 180 days of leave."

The parental rights consultant emphasizes that the news about these measures "created a lot of anxiety among families, especially those in the process of activating these rights." Marta Esteves points out, however, that these proposals still need to go through a legislative process before they can be approved. Only after approval through social consultation will the draft bill advance to the Assembly of the Republic, where the PSD/CDS, lacking a majority, will need the support of Chega or PS for approval. Both parties have already expressed their disagreement with some of the executive branch's intentions regarding labor reform. Even if the proposed changes are approved, the legislation still needs to be promulgated by the President of the Republic for subsequent publication in the Official Gazette. Until then, "the parenting regime remains as we know it and as it is currently in force," the lawyer reassures families.