Employment law
Maternity leave
Maternity leave combines three distinct protections: a suspension of the contract, compensation paid by the INPS (National Social Security Institute) under the Social Security Code, and a ban on termination during the suspension. Treating them separately is the main source of errors.
On top of this comes an obligation that is often overlooked because it binds the employer rather than the employee: for seven weeks, the employee may not be employed, even if she wishes to work.
1. How long does it last?
Every pregnant woman is entitled to fourteen weeks of maternity leave: it starts six weeks before the expected date of delivery and ends eight weeks after delivery.
| Period | Duration |
|---|---|
| Before the expected date of delivery | 6 weeks |
| After delivery | 8 weeks |
| Total | 14 weeks |
A protective rule completes the arrangement: where delivery occurs before the expected date, the rest period is extended until the fourteen weeks have been completed. Leave still starts six weeks before the expected date; it is the period after the birth that lengthens so that the fourteen-week total is reached.
Example. An employee expecting to give birth on 1 March starts her leave six weeks earlier. She gives birth two weeks early: her post-natal rest is increased to ten weeks, for an unchanged total of fourteen.
In the event of illness certified by a doctor and resulting from pregnancy or confinement, the employee may claim a three-week extension. The daily allowance remains payable during that extension, on application to the INPS with the medical certificate and an employer's statement that work has not resumed. Labour Code, Articles L.179 and L.181 — French; Social Security Code, Article 30 — French.
2. Why is employment prohibited for seven weeks?
This is the most frequently overlooked point, and the obligation rests on the employer: the employee may not be employed for a consecutive period of seven weeks, three of which fall before the expected date of delivery.
Two practical consequences:
- It is not the employee's option. Even if she offers to work during this period, the employer may not employ her.
- The protected core spans both sides of the birth: three weeks before, and the balance after, for a consecutive total of seven weeks.
The INPS may also check that the employee has done no paid work during her pre-natal and post-natal rest. Labour Code, Article L.180 — French; Social Security Code, Article 32 — French.
3. How is the employee compensated?
During the leave, the employee is entitled to free medical care and to the pay she was receiving when work was suspended, under the conditions set by the Social Security Code. She also keeps her entitlement to benefits in kind.
This pay takes the form of a daily allowance paid by the INPS, equal to the full salary actually received when the contract was suspended, without any ceiling, for the entire fourteen weeks.
The employer's role is administrative, but payment depends on it. In particular, the employer issues:
- a statement proving that the employee has actually stopped working;
- a statement of the salary actually received when work stopped.
A late file automatically delays payment: prepare these documents before the leave starts and hand them over as soon as work stops.
Salary maintained by the employer. An employer who maintains all or part of the salary during the leave is subrogated by operation of law to the employee's rights to the daily allowances: the employer then receives them from the INPS. Two conditions apply: being up to date with the INPS, and paying at least the amount of the allowance due. Labour Code, Article L.182 — French; Social Security Code, Articles 28, 29 and 31 — French.
4. What are the eligibility conditions?
Three benefits must be distinguished, and they are not subject to the same conditions.
| Benefit | Eligibility condition |
|---|---|
| Pre-natal allowances | Open to an employee or the spouse of an employee, from the declaration of pregnancy. If sent to the INPS with a medical certificate within the first three months, the declaration gives entitlement for the nine months before the birth. Three medical examinations are required: before the end of the third month, around the sixth, around the eighth. |
| Maternity allowances | Birth, under medical supervision, of a viable child registered with the civil registry. In a multiple birth, each birth counts as a separate maternity. |
| Daily allowance | Prove employee status, meaning nine consecutive months of activity with one or more employers; have the pregnancy confirmed by a doctor or midwife and send the certificate to the INPS; actually stop working; prove the salary received when work stopped. |
For the activity condition, only months in which the employee worked at least 18 days or 120 hours count. Certain absences are treated as working days, including duly certified illness and the effects of a workplace accident.
Formalities already completed for the pre-natal and maternity allowances do not have to be repeated for the daily allowance. Social Security Code, Articles 7, 14, 16, 18 and 29 — French.
5. How is the job protected?
Maternity leave suspends the employment contract, and throughout the suspension, the employer may not terminate the contract. The text sets no seniority condition and no exception: no termination procedure should be started during this period.
The Code also covers the case where the employee cannot return when the leave ends. Where, because of illness, she cannot resume work:
- the suspension of the contract takes effect from the first day following the end of the leave;
- from the first day following the three-week extension, the employer must compensate her under the rules applicable to non-occupational illness;
- the ban on termination covers the whole of this suspension.
Labour Code, Articles L.34, L.37 and L.183 — French.
6. How can the employee end her contract?
Two options are open to her, on the same terms.
Any pregnant woman whose condition has been medically confirmed may terminate her contract after informing her employer twenty-four hours in advance, save in case of force majeure, and without paying any compensation in lieu of notice. A mother has the same option for fifteen months after the child's birth.
| Item | Rule |
|---|---|
| Who | A pregnant woman whose condition is medically confirmed, then the mother for 15 months |
| Notice to the employer | 24 hours in advance, save force majeure |
| Payment in lieu of notice | None is owed by the employee |
Labour Code, Articles L.178 and L.184 — French.
7. How are nursing breaks organised?
For fifteen months from the child's birth, the mother is entitled to nursing breaks at the workplace. These breaks may not exceed one hour per working day in total, and they may not lead to any reduction in pay.
The implementing decree specifies how this hour is organised:
- it is split into two thirty-minute periods, one in the morning and one in the afternoon;
- the times are set by agreement; failing agreement, the break is taken in the middle of each half-day;
- the mother may always nurse her child on the premises;
- in establishments employing more than twenty-five women, the labour inspector may require, by formal notice, a dedicated nursing room.
The decree also prohibits making a pregnant woman carry, push or pull any load once her condition has been notified to the employer, and during the three weeks following her return to work after giving birth. Decree No. 96-178/P-RM, Articles D.189-11 and D.189-13; Labour Code, Article L.184 — French.
8. Step-by-step checklist
| When | What to do |
|---|---|
| When the pregnancy is announced | Remind the employee to declare it to the INPS within the first three months and of the three compulsory medical examinations; check the nine-month activity condition; stop assigning her to carry loads |
| Before the leave | Prepare the work-stoppage and salary statements; decide whether to maintain pay (subrogation) |
| Six weeks before the expected date | Start the leave; do not employ the employee during the three weeks before the expected date |
| During the leave | Treat the absence as a suspension; arrange cover through a written fixed-term contract stating the name and qualification of the employee being replaced |
| Throughout the suspension | Do not start any termination procedure |
| On return | Reinstate the employee; organise the two thirty-minute nursing breaks; do not make her carry loads for three weeks |
| For 15 months after the birth | Maintain the nursing hour, with no reduction in pay |
The replacement contract is provided for by Article L.20 of the Labour Code; its mandatory particulars are set out in Article D.20-1 of Decree No. 96-178/P-RM. Labour Code, Article L.20 — French.
Key takeaways
| The rule | What it implies |
|---|---|
| 14 weeks: 6 before, 8 after | An early birth lengthens post-natal rest up to the 14 weeks |
| Seven-week employment ban | Three weeks before the expected date; not the employee's option |
| Three-week extension | For illness resulting from pregnancy or confinement, allowance maintained on application |
| The INPS pays, not the employer | Full salary received at the time of suspension, without any ceiling |
| Nine months of activity required | With at least 18 days or 120 hours per month |
| Salary maintained by the employer | The employer is then subrogated to the daily allowances |
| No termination during the suspension | Including during the illness extension |
| The employee may leave without notice for 15 months | After informing the employer 24 hours in advance, with no payment in lieu of notice |
| One nursing hour per day for 15 months | Two half-hours, at the workplace, with no reduction in pay |