Eligibility for Paternity Leave During Forced Leave Without Pay Under Philippine Labor Law

Introduction

In the Philippine labor landscape, employee benefits such as leaves are designed to balance work obligations with personal and family needs. Paternity leave, in particular, recognizes the role of fathers in supporting their spouses during childbirth and early childcare. However, complexities arise when an employee is placed on forced leave without pay (LWOP), a situation that may stem from disciplinary actions, operational necessities, or other employer-imposed measures. This article explores the eligibility of male employees for paternity leave while under forced LWOP, drawing from relevant provisions of Philippine labor laws, including the Labor Code of the Philippines (Presidential Decree No. 442, as amended), Republic Act No. 8187 (Paternity Leave Act of 1996), and related issuances from the Department of Labor and Employment (DOLE). It examines the legal framework, eligibility requirements, potential conflicts, and practical implications for both employees and employers.

Overview of Paternity Leave in the Philippines

Paternity leave is a statutory benefit granted to qualified male employees to allow them time off work following the birth of their child. Enacted through Republic Act No. 8187, the Paternity Leave Act of 1996, this benefit aims to promote family welfare and gender equality in parenting responsibilities.

Key Provisions of RA 8187

Duration and Compensation: Eligible employees are entitled to seven (7) days of leave with full pay.
Coverage: The leave applies to the first four (4) deliveries (including live births and miscarriages after the 24th week of pregnancy) of the employee's legitimate spouse with whom he is cohabiting.
Applicability: It covers married male employees in both the private and public sectors. For private sector employees, it is mandatory, while government employees are governed by similar rules under Civil Service Commission (CSC) Memorandum Circulars.
Notification Requirement: The employee must notify the employer of the pregnancy of his spouse and the expected date of delivery at least one (1) week before the intended availment, except in cases of emergency.
Non-Convertible and Non-Cumulative: The leave cannot be converted to cash if unused, nor can it be accumulated for future use.
Integration with Other Leaves: It may be availed consecutively or intermittently within the period immediately after delivery, but it does not diminish other leave credits like vacation or sick leave.

Amendments and expansions have been introduced through related laws. For instance, Republic Act No. 11210 (Expanded Maternity Leave Law of 2019) allows the allocation of up to seven (7) days from the mother's 105-day maternity leave to the father, provided the mother consents and the father qualifies under paternity leave rules. This allocation is in addition to the basic seven-day paternity leave under RA 8187, potentially allowing up to 14 days for fathers in certain scenarios.

DOLE Department Order No. 147-15 provides implementing rules, emphasizing that paternity leave is a right that cannot be waived or diminished by collective bargaining agreements (CBAs) or company policies, as it is a minimum standard under the law.

Understanding Forced Leave Without Pay

Forced LWOP refers to a period where an employee is required to take leave without receiving pay, often imposed by the employer rather than requested by the employee. This differs from voluntary LWOP, where the employee initiates the request for personal reasons.

Common Scenarios for Forced LWOP

Disciplinary Suspension: Under Article 301 (formerly Article 286) of the Labor Code, employers may impose preventive suspension during investigations of employee misconduct, not exceeding 30 days. If the employee is exonerated, back wages are due; otherwise, the suspension may lead to dismissal.
Operational Reasons: In cases of redundancy, retrenchment, or temporary shutdowns due to economic downturns, employers may place employees on floating status or forced LWOP, as permitted under Article 301, provided it does not exceed six (6) months. Beyond this, it may constitute constructive dismissal.
Health or Safety Mandates: During pandemics or workplace hazards, forced LWOP may be imposed under DOLE advisories, such as those during the COVID-19 period.
Administrative Penalties: In the public sector, CSC rules allow for forced LWOP as a penalty for minor offenses.

During forced LWOP, the employment relationship remains intact, but the "no work, no pay" principle applies, meaning the employee does not earn salary or accrue certain benefits tied to active service. However, statutory benefits like social security contributions (via SSS, PhilHealth, and Pag-IBIG) continue, as the employee is still considered employed.

Eligibility Criteria for Paternity Leave

To qualify for paternity leave under RA 8187, an employee must meet the following:

Marital Status: He must be legally married to the child's mother.
Cohabitation: He must be living with his spouse at the time of delivery.
Employment Status: He must be employed at the time of the delivery, whether in the private or public sector.
Number of Deliveries: Limited to the first four deliveries of the spouse.
Legitimacy of Child: The child must be from the legitimate spouse; it does not cover children from common-law relationships or extramarital affairs.

Importantly, the law does not explicitly require the employee to be on active duty or receiving pay at the exact moment of delivery. The emphasis is on the existence of the employment relationship.

Analysis: Eligibility During Forced Leave Without Pay

The core question is whether an employee on forced LWOP remains eligible for paternity leave. Philippine labor jurisprudence and DOLE interpretations provide guidance, though no specific Supreme Court ruling directly addresses this intersection.

Legal Basis for Eligibility

Employment Relationship as Key: Under RA 8187, eligibility hinges on being "employed" at the time of delivery. Forced LWOP does not sever employment; it merely suspends work and pay temporarily. As held in cases like Santos v. NLRC (G.R. No. 101699, 1996), suspension does not terminate employment but places it in abeyance. Thus, an employee on LWOP is still considered employed and should retain access to statutory benefits not contingent on active service.
Statutory Nature of Paternity Leave: As a mandated benefit under the Labor Code's welfare provisions (Book VI), paternity leave is irreducible. Article 4 of the Labor Code states that doubts in labor laws should be resolved in favor of the worker. Denying paternity leave during LWOP could be seen as an unlawful diminution of benefits, potentially violating Article 100.
DOLE Guidelines: DOLE Advisory No. 01, Series of 2010, clarifies that paternity leave applies regardless of employment status nuances, as long as the basic criteria are met. In practice, DOLE labor arbiters have ruled in favor of employees claiming leaves during suspensions if the delivery occurs within the employment period.
Comparison with Other Benefits: Similar to maternity leave, which can be availed even during suspension (as per RA 11210), paternity leave should follow suit. In Millares v. NLRC (G.R. No. 122827, 1999), the Court affirmed that statutory leaves are vested rights not forfeited by temporary absences.

Potential Conflicts and Limitations

Preventive Suspension: If LWOP is due to preventive suspension under Article 301, and the investigation finds the employee guilty leading to dismissal before delivery, eligibility may be lost. However, if delivery occurs during suspension, the employee may still claim the leave, with pay computed based on the pre-suspension rate. Back wages, if awarded upon exoneration, would include paternity leave pay.
Duration Exceeding Limits: If forced LWOP extends beyond six months without justification, it may be deemed constructive dismissal (Consolidated Building Maintenance, Inc. v. Castro, G.R. No. 185062, 2011). In such cases, the employee could claim paternity leave as part of separation benefits or damages.
Company Policies: Some CBAs or company manuals may attempt to restrict leaves during LWOP, but these are void if they contravene RA 8187. Employers cannot impose additional conditions without DOLE approval.
Public Sector Nuances: For government employees, CSC MC No. 14, s. 1999, aligns with RA 8187 but adds that leaves during administrative suspension are subject to CSC approval. If suspended, paternity leave may be deferred or denied if it interferes with disciplinary proceedings.

Practical Implications

Availment Process: The employee should notify the employer as required, even while on LWOP. Failure to notify may result in denial, but not due to LWOP status.
Payment During LWOP: Paternity leave pay is based on the employee's regular salary, funded by the employer. During LWOP, this pay would be an exception to the "no pay" rule, as it is a separate entitlement.
Documentation: Proof of marriage, cohabitation, and delivery (e.g., birth certificate) must be submitted post-availment.
Remedies for Denial: If denied, the employee can file a complaint with DOLE for violation of RA 8187, potentially leading to fines (P1,000 to P10,000 per violation) or administrative sanctions. In extreme cases, it could support claims for constructive dismissal or illegal suspension.

Interplay with Related Laws

Expanded Maternity Leave (RA 11210): Fathers may receive allocated days from the mother's leave, but this requires the mother's written consent and the father's eligibility under paternity rules. During forced LWOP, this allocation remains possible, as it is tied to family welfare rather than active work status.
Solo Parent Welfare Act (RA 8972): If the father becomes a solo parent due to circumstances, additional parental leave (7 days per year) may apply, independent of paternity leave.
Family Code (EO 209): Reinforces the marital and cohabitation requirements, ensuring the leave supports legitimate family units.
SSS Benefits: Paternity leave does not affect SSS maternity/paternity benefits, which are separate reimbursements.

Challenges and Recommendations

Challenges include employer resistance during disciplinary LWOP, potential delays in payment, and lack of awareness among workers. To address these:

Employees should document all communications and seek DOLE mediation early.
Employers must train HR on non-discriminatory application of leaves.
Legislative reforms could clarify intersections between leaves and suspensions, perhaps through amendments to the Labor Code.

Conclusion

Under Philippine labor law, an employee on forced leave without pay generally remains eligible for paternity leave, as the benefit is anchored on the ongoing employment relationship rather than active pay status. This interpretation aligns with the pro-worker stance of the Labor Code and promotes family-oriented policies. However, specific circumstances like dismissal or prolonged unjustified LWOP may affect availment. Employees are encouraged to assert their rights promptly, while employers must comply to avoid liabilities. This framework underscores the Philippines' commitment to balancing labor rights with family responsibilities, ensuring that personal milestones like childbirth are not overshadowed by workplace constraints.