Can Employers Extend a Probationary Period Because of Maternity Leave in the Philippines?

Bottom line (short answer)

No. In the Philippines, a probationary period cannot be extended beyond six (6) months on account of pregnancy or maternity leave. The six-month cap is a hard limit under the Labor Code. The Expanded Maternity Leave Law (RA 11210) and women-protection statutes prohibit any act—direct or indirect—that penalizes an employee for being pregnant or for taking maternity leave. Employers must evaluate a probationary employee on the basis of standards made known at hiring, not on her decision to avail of statutory leave. If the employer keeps her in service beyond the six-month limit without lawful termination, she becomes a regular employee by operation of law.

The legal framework

1) Probationary employment and the six-month cap

Labor Code: Probationary employment is allowed for a period not exceeding six months from the date the employee started working, unless the job is covered by a duly registered apprenticeship/learnership program that lawfully prescribes a longer period.
Regularization by operation of law: If the employer allows the employee to continue working after the six-month period without valid termination, the employee automatically becomes regular, regardless of labels or internal paperwork.
Standards must be disclosed: To lawfully terminate a probationary employee for “failure to qualify,” the employer must have reasonable performance or conduct standards and must have made these standards known at the time of engagement (e.g., in the contract, job offer, handbook acknowledged at hiring).

2) Maternity protection and non-discrimination

Expanded Maternity Leave Law (RA 11210): Grants at least 105 days of paid maternity leave (with additional days in certain cases) and guarantees security of tenure—the employment relationship cannot be severed during pregnancy or maternity leave and an employee must not be penalized in any way for availing of it.
Women-protection statutes (e.g., Labor Code anti-discrimination provisions; Magna Carta of Women): Prohibit discrimination in terms/conditions of employment on account of pregnancy or maternity status. Firing, refusing regularization, or extending probation because of maternity leave is a form of prohibited discrimination.

Can the six-month probation be “paused” or extended because the employee is on maternity leave?

The default rule: No extensions beyond six months

The six-month limit is statutory. Authorized absences, including maternity leave, do not create a legal exception that allows the employer to extend the probationary clock.
Any unilateral “stop-the-clock” clause or after-the-fact extension that makes probation run longer than six months is highly vulnerable to being struck down. If the employment continues beyond six months, the safer legal conclusion is regularization.

Why “insufficient time to assess” is not a valid reason

The law puts the risk of evaluation on the employer. Employers are expected to design and apply standards that can be assessed within the probationary window or—if not possible—to make a lawful decision before the six months lapse.
Saying “we couldn’t evaluate you because you took maternity leave” effectively penalizes the employee for using a statutory right and invites a discrimination finding.

Narrow, exceptional scenarios (rare)

Apprenticeship/learnership: If—and only if—the role is under a valid apprenticeship/learnership agreement registered with DOLE that prescribes a longer training period, that longer period (not six months) governs. This is not a maternity-based extension; it must exist from the start and be independently lawful.
Mutual agreements that still respect six months: Parties may agree (in writing) to evaluation mechanics (e.g., additional check-ins after return from leave), but not to an extension of the probationary end date beyond six months. Any “agreement” that results in a longer probation is legally precarious.

How to compute the six months

In practice and jurisprudence, six months has often been treated as approximately 180 calendar days counted from the start date. The safest practice is to calendar the exact end date at hiring (e.g., start 01 March → probation ends 28/29 August, depending on month lengths) and manage all evaluations to conclude before that date.
Do not rely on post-hoc “exclusions” (e.g., “we’ll subtract days you were on leave”) unless clearly grounded in a lawful exception (like a registered apprenticeship). Otherwise, expect a finding that the employee regularized at the six-month mark.

What employers may (and may not) do

Permissible

Plan ahead: Set clear, written performance standards at hiring and design milestones front-loaded enough to allow a reasonable assessment before the six-month deadline—even if a leave occurs.
Evaluate on evidence: Use objective artifacts (work outputs, trainings completed, behavior records) available within the six-month window.
Terminate lawfully before day 180 (or the calendared end date) for just cause or for failure to meet disclosed standards, provided due process is observed and the decision is unrelated to pregnancy or leave.
Regularize on or before the probation end if the employee meets standards or if the employer lacks sufficient lawful basis to withhold regularization.

Impermissible (high-risk)

Extending probation because the employee was pregnant or on maternity leave.
“Stopping the clock” so that the probation end date moves past six months for any reason tied to maternity.
Terminating or denying regularization because maternity leave limited observation time.
Imposing adverse consequences (reduced pay, demotion, reset probation) because the employee availed of RA 11210 leave.

Practical compliance playbook (for HR & managers)

At offer stage
- Put the probation end date in the contract.
- Attach or reference written standards and evaluation rubrics; get employee acknowledgment at hiring.
When notified of pregnancy
- Acknowledge no change to probation end date.
- Update the performance plan: lock in what will be assessed before the end date and what can be assessed after regularization (as part of normal performance management).
Before maternity leave starts
- Conduct an interim review covering work-to-date. Record strengths, gaps, and any support provided.
During maternity leave
- No work may be required; no negative ratings for not performing during protected leave.
- Keep records neutral—do not mark “attendance issues” tied to maternity leave.
Upon return
- Provide reintegration and reasonable time to ramp. You may conduct a post-return review, but remember the probation end date does not move.
Decision point
- If evidence shows standards were met (or the employer lacks a lawful, well-documented basis to say otherwise), regularize.
- If there is a legitimate, non-discriminatory basis to terminate for failure to meet disclosed standards, this must be done before the six-month end date with due process (notice, opportunity to explain, written decision).

Risks of getting it wrong

Unfair labor practice / illegal dismissal for discrimination based on pregnancy or for violating security of tenure.
Damages, backwages, reinstatement (or separation pay in lieu) if termination or non-regularization is found unlawful.
Administrative exposure for non-compliance with RA 11210 and related rules.

FAQs

Q: Can we ask an employee to “agree” to extend probation because she took maternity leave? A: No. Consent will not cure a statutory violation. Any extension beyond six months remains vulnerable.

Q: Can we rate her “unsatisfactory” for months she was on maternity leave? A: No. You cannot penalize protected leave. Evaluate only the period actually worked, against pre-disclosed standards.

Q: What if we truly lack enough data to evaluate? A: That risk sits with the employer. If you cannot lawfully substantiate non-regularization before the six-month mark, the safer path is to regularize and continue performance management under company policy for regular employees.

Q: Does the 105-day leave change the six-month probation cap? A: No. RA 11210 increased leave benefits and strengthened tenure protection; it did not create a carve-out to extend probation.

Employer checklist (quick reference)

Probation end date calendared at hiring
Written standards disclosed and acknowledged at hiring
Interim review conducted before leave
No adverse actions tied to pregnancy/leave
Decision (regularize or lawful termination) made before the six-month end date
Documentation preserved showing standards, notice, evaluation, and decision basis

Final takeaway

Pregnancy and maternity leave cannot be used to extend probation. The law’s architecture deliberately places the evaluation burden on employers within a strict six-month window, while shielding mothers from any penalty for exercising their right to maternity leave. Plan early, document fairly, and decide on time.