Can a Pregnant Employee Be Terminated?

Maternity Protection and Anti-Discrimination Rules in the Philippines

Bottom line (the short answer)

No—an employer may not dismiss, refuse to hire, demote, or otherwise discriminate against a woman because she is pregnant, because she avails of maternity leave, or to prevent her from receiving maternity benefits. Termination is lawful only if there is a valid just cause or authorized cause under the Labor Code, proven by the employer, and not motivated by pregnancy—and only after proper due process.

The legal framework (what governs this)

1987 Constitution – guarantees security of tenure and equal protection; labor is entitled to full protection.
Labor Code of the Philippines (as amended) – prohibits discrimination against women and bars dismissal on account of pregnancy or for the purpose of preventing maternity benefits; sets the just and authorized causes and due-process rules.
Republic Act (RA) No. 11210 – Expanded Maternity Leave (EML) Law and its IRR – 105-day paid maternity leave (live birth), additional 15 days for solo parents, and 60 days for miscarriage or emergency termination of pregnancy (EToP); contains non-discrimination and non-dismissal protections tied to maternity leave.
RA No. 11199 – Social Security Act of 2018 – SSS maternity benefit rules for private-sector workers.
RA No. 9710 – Magna Carta of Women – prohibits sex-based discrimination, including pregnancy-based adverse actions.
Related statutes: RA 8187 (Paternity Leave), RA 8972 as amended by RA 11861 (Expanded Solo Parents’ Welfare Act), RA 10361 (Domestic Workers or “Batas Kasambahay”), RA 10173 (Data Privacy Act), RA 11058 (OSH law).

What counts as unlawful pregnancy-related termination

Any of the following will generally constitute illegal dismissal or unlawful discrimination:

Firing, laying off, or refusing to renew a contract because the employee is pregnant or might become pregnant.
Dismissing or disciplining an employee for availing of maternity leave or to prevent her from receiving maternity benefits.
Treating pregnancy-related medical appointments as “absences” or “AWOL” to justify discipline or termination, despite proper notice and documentation.
Selecting a pregnant employee for redundancy or retrenchment on criteria that target pregnancy or leave (e.g., “least available due to pregnancy”).
Non-regularizing a probationary employee because she became pregnant (rather than for genuine failure to meet pre-communicated standards).

Burden of proof: In illegal dismissal cases, the employer must prove a valid cause and compliance with due process. If the cause is pregnancy or availing of leave, dismissal is unlawful.

When termination may still be lawful (and the guardrails)

Pregnancy is not a shield from legitimate termination unrelated to pregnancy. These are the only allowable bases:

Just causes (employee fault) – e.g., serious misconduct, willful disobedience, gross and habitual neglect, fraud or breach of trust, commission of a crime against the employer, or analogous causes.
- Due process needed: (a) First notice (notice to explain stating the facts/charges), (b) opportunity to be heard, (c) final notice of decision stating the reasons.
Authorized causes (business or health reasons) – e.g., installation of labor-saving devices, redundancy, retrenchment to prevent losses, or closure; disease that cannot, within six months and with proper medical certification, be cured without risk to the employee or coworkers.
- Due process needed: 30-day written notice to the employee and DOLE.
- Separation pay:
  - Redundancy / labor-saving devices – at least 1 month pay or 1 month per year of service, whichever is higher.
  - Retrenchment / closure (not due to serious losses) – at least ½ month pay per year of service.
  - Disease – at least ½ month pay per year of service (with competent public health certification).
Fixed-term / project completion – separation at the genuine end of a valid fixed term or upon project completion may be lawful; however, non-renewal because of pregnancy is unlawful. (SSS maternity benefits may still be claimed if contribution conditions are met.)

Key guardrail: If pregnancy or leave influenced the decision—even partly—the action is tainted and unlawful.

Maternity leave and pay: essentials for private-sector employees

Coverage: All female workers, regardless of civil status, employment status (regular, probationary, casual, project, seasonal, fixed-term), or legitimacy of the child.
Duration & events:
- Live birth: 105 days with pay; +15 days if the mother is a solo parent.
- Miscarriage/EToP: 60 days with pay.
Full pay: Composed of the SSS cash benefit plus the employer-paid salary differential (unless the employer qualifies for an exemption under the EML IRR, e.g., certain distressed or micro-business employers).
When taken: Generally continuous, starting no earlier than 45 days before expected date of delivery, unless medically required otherwise.
No diminution / no offset: Maternity benefits are in addition to other leave benefits; they cannot be reduced or substituted.
Allocation of up to 7 days to the father or an alternate caregiver is allowed (separate from the father’s 7-day paternity leave under RA 8187).

Separated employees: A woman separated from employment before childbirth or miscarriage may still claim the SSS maternity benefit if she has the required contributions for the relevant period. (Employer obligations like salary differential apply only if she is employed at the time the leave is taken.)

Special notes by employment status / sector

Probationary employees: Pregnancy cannot be a ground for termination or non-regularization. Employers must show failure to meet pre-communicated standards, and must still observe the two-notice and hearing rule.
Fixed-term / project-based: Pregnancy cannot be used to shorten or refuse renewal of a valid term; genuine project completion or term expiry remains a lawful ground if not used as a pretext.
Domestic workers (Kasambahay): Covered by SSS; cannot be dismissed on account of pregnancy; termination must conform to the grounds under RA 10361 and general labor standards.
Public sector: The same 105/60-day durations apply; administration is through the Civil Service Commission rules.

Workplace accommodations & safety

OSH duties: Employers must identify and control work-related risks to pregnant workers (e.g., exposure to hazardous substances, heavy manual handling, extreme heat).
Reasonable adjustments: Temporary job modifications, scheduling flexibility for prenatal visits, hydration and rest breaks, and safe-work method changes are all best-practice—and help avoid discriminatory outcomes.
Data privacy: Pregnancy and medical information are sensitive personal information; handle on a strict need-to-know basis under the Data Privacy Act.

Due-process checklists

For employers (before any adverse action)

Cause: Confirm it is a bona fide just/authorized cause unrelated to pregnancy or leave.
Documentation: Evidence (e.g., performance records, audit findings, business justifications) prepared before any notice.
Procedural compliance:
- Just cause: Notice to explain → opportunity to be heard → reasoned decision.
- Authorized cause: 30-day notice to employee and DOLE + correct separation pay.
Consistency: Apply criteria uniformly (e.g., redundancy selection matrix that does not penalize maternity leave).
Benefits: Ensure all earned wages, leave conversions (if applicable), and maternity benefits due are processed; do not withhold clearances to frustrate claims.

For employees (to protect your rights)

Keep copies of medical certificates, ultrasound/OB orders, maternity notifications to employer/SSS, leave applications, and any HR emails.
If disciplined/terminated, request a written statement of reasons and keep proof of service/receipt.
File a timely SSS maternity claim if eligible, even if separated.
Consider filing a Single-Entry Approach (SENA) request with DOLE for facilitated settlement, or an illegal dismissal case before the NLRC (private sector) if unresolved.

Remedies and liabilities for unlawful acts

Employee remedies: Reinstatement (or separation pay in lieu, at the court’s discretion), full backwages, restoration of benefits/seniority, moral and exemplary damages in appropriate cases, and attorney’s fees.
Employer exposure: Administrative, civil, and (under specific statutes) criminal or fine-based penalties for violating maternity-leave or anti-discrimination provisions; possible data-privacy penalties for mishandling medical information.

Practical FAQs

Can a pregnant employee be terminated for poor performance? Yes only if the employer proves genuine, documented poor performance unrelated to pregnancy, with fair evaluation standards communicated at hiring (for probationary) and with due process.

Can she be included in a redundancy program? Yes, if selection uses objective, pregnancy-neutral criteria (e.g., skills match, seniority, documented performance) and redundancy is real. Targeting employees because they are on—or will take—maternity leave is unlawful.

What if the contract ends during her maternity leave? If a valid fixed term expires while on leave, the employment may end at term expiry; however, she retains her SSS maternity benefit (and any accrued benefits). Salary differential applies only during active employment.

Can attendance policies treat prenatal check-ups as unexcused absences? No. With proper notice and medical documentation, pregnancy-related appointments should be accommodated; penalizing them may be discriminatory.

Can the employer ask for a fit-to-work clearance after childbirth? Yes, if applied consistently to similarly situated employees and aligned with OSH obligations—but it cannot be used to delay or deny return to work beyond medically necessary limits.

Model policy clause (for handbooks)

Pregnancy & Maternity Protection. The Company prohibits any adverse action (including refusal to hire, demotion, discipline, termination, or selection for redundancy) because of pregnancy, childbirth, or the availing of maternity leave. We comply with the Expanded Maternity Leave Law and related regulations. Maternity leave is with full pay (subject to lawful exemptions) and shall not diminish any other benefits. Decisions affecting employment must be based on legitimate business reasons unrelated to pregnancy or maternity leave, with full observance of Labor Code due process. Requests for reasonable accommodations during pregnancy will be assessed promptly and granted where practicable, consistent with OSH standards.

Key takeaways

Pregnancy is a protected status. You cannot be fired because you are pregnant or because you will take maternity leave.
Lawful termination is narrow and procedural. It must fit a just or authorized cause, be well-documented, and follow due process.
Benefits are robust. The EML Law guarantees 105/60 days paid leave (plus additional days for solo parents), with SSS benefits and, in most cases, an employer-paid salary differential.
Enforcement is real. Violations expose employers to reinstatement/backwages, damages, fines, and reputational risk.

This article provides general information on Philippine law and is not a substitute for tailored legal advice. Specific facts matter; if you’re facing a dispute or planning a policy change, consider consulting counsel or your DOLE regional office.