Rights and Obligations for pregnant employees

As we have mentioned in a previous article, Labor Rights and Obligations for both Dominican and Foreign Employees, Dominican labor laws are applicable for both Dominican and foreign employees, in addition to pregnant women who are not the exception and whose rights and obligations will be discussed herein.

Dominican labor laws grants many warranties and measures which support and contribute to the protection of pregnant women in the labor force. An employee working in a company based in the Dominican Republic, can feel relieved when pregnant, since as established in articles 231-243 of our Labor Code regarding the rights and obligations of pregnant employees, both employers and employees cannot renounce to or limit these rights and obligations.

Which are these rights? Firstly, all pregnant employees have the right to enjoy a 6 weeks leave preceding the expected date of birth (pre-natal leave) and the six weeks following the birth of the child (post-natal leave). In the event the pregnant employee wishes to continue working during the pre-natal leave, she will be able to use both, the pre and post natal leave (this is 12 weeks) after the child’s birth.

In this sense, the employer is forced to continue paying the pregnant employee’s salary during the time of her post and pre- natal leaves as well as to keep her registered in the Social Security System so she can enjoy the benefits of Health Insurance, which is mandatory for all employees.

The Social Security System offers a maternity subsidy to all pregnant employees of 3salaries from the first day of her maternity leave. In order to receive these benefits the pregnant employee must be: (i) affiliated to the Contributive Regimen of the Dominican Social Security System (this regimen applies for public and private employees who jointly contribute to the Social Security System); (ii) has been affiliated for at least 8 months to this regimen (between the 12 months prior to the birth child); and, (iv) the pregnant employee cannot be working during her maternity leave. In the same way, pregnant employees will receive a nursing subsidy during the first 12 months once the child is born. In order to receive this subsidy the employee must be receiving a salary lower than or equal to 3 minimum wage salaries.

Both, the maternity and nursing subsidies are regulated by the Superintendence of Health and Labor Risks (SISALRIL). In practice, the payment of the maternity subsidy is done by the employer through payroll, while the SISALRIL will reimburse the employer a maximum of 10 minimum wage salaries contributed to the social security system while the payment of the nursing subsidy is done by the SISALRIL. Regarding the maternity subsidy if the pregnant employee receives a higher salary than the 10 minimum wage salaries covered by the SISALRIL, the employer must cover the remaining amount.

Furthermore, the pregnant employee will have the right to request her vacation days immediately after her post natal leave and the employer is obliged to consent. During the nursing period, the employee has the right to 3 paid leaves every day during working hours, of a minimum of 20 minutes each for nursing the child.

But, what happens if the pregnant employee is given a medical license during most of her pregnancy? In this case, the Labor Code establishes that if a pregnant employee cannot perform her job as a result of a complicated pregnancy or birth, she must notify the employer and the Department of Labor with the medical certificate justifying her inability to work and the employer must grant a license to such employee.

However, what happens if the pregnant employee cannot continue working at the work place? In this case, the Labor Code states that if as a consequence of a complicated pregnancy or birth the work she performs will affect her health or that of the child and if attested by a certificate issued by her doctor, the employer is obliged to make it possible for the female worker to change her job. In the event that a change in position is not possible, the pregnant employee has the right to a leave of absence without salary. It is important to mention that the employer will be obliged to concede a license to the pregnant employee as long as she presents a medical certificate establishing the work she performs is harmful for her health.

Another common question is what happens when a pregnant employee is fired? In this sense, our Labor Code is clear in establishing that firing an employee for being pregnant is invalid. However, the employer can fire a pregnant employee for a specific reason as a result of the employee’s fault, as mentioned in article 88 of the Labor Code. If this is the case, this action must be submitted in advance to the Department of Labor, specifically the Ministry of Labor in order to determine if the termination of the pregnant employee’s work contract is valid.

In the same way, all work contract terminations without a specific cause during the pregnancy period or within three months after the date of birth is null. So, the employer must maintain the pregnant employee’s job during the nine months of pregnancy as well as the three months after childbirth.

As far as the obligations of pregnant employees, they must notify regarding their pregnancy and expected date of birth. The pregnant employee must also present to her employer the maternity form to request the maternity subsidy.

Notwithstanding the above mentioned, it is important to mention that despite our Labor Code is extremely protectionist of pregnant employees, they should not fail to fulfill their duties if they are in the possibility of doing so. Also, it is responsibility of the pregnant employee to notify the employer of her pregnancy by any certified means, so in case of any dispute, the pregnant employee must demonstrate she complied with her obligations.

Elsie Espino Lawyer on elexpersona.com

Elsie Espino

Practice Areas:
Family Law, Labor Law, Foreign Investment, Immigration and Social Security.

Background:
Bachelor Degree in Law from Pontificia Universidad Católica Madre y Maestra (PUCMM), Santo Domingo, Dominican Republic.
Masters in International Trading from Carlos III Univeristy, Madrid, Spain.