A Philippine labor-law article on rights, limits, and common workplace scenarios

1) Why this topic matters

In the Philippines, maternity leave is a statutory right and probationary employment is a management tool with strict legal boundaries. Problems arise when these overlap—especially if a worker becomes pregnant (or gives birth) while on probation and the employer considers ending the contract or refusing regularization. Philippine labor law generally protects maternity leave and prohibits discriminatory termination, while still allowing lawful probationary termination for valid reasons and with due process.

This article is for general information in the Philippine context and is not legal advice. Laws and implementing rules can change; when stakes are high, consult counsel or DOLE/SSS guidance for the latest requirements.

2) Core legal framework (Philippine context)

Key sources (private sector focus)

Labor Code provisions on employment termination, security of tenure, probationary employment, and workplace standards
Expanded Maternity Leave Law (EMLL) (commonly known as RA 11210) and its Implementing Rules
SSS law/rules on maternity cash benefits for SSS-covered employees
Anti-discrimination and women-protection norms in labor standards and related statutes (e.g., policy against dismissal due to pregnancy; broader equality protections)

The governing ideas

Maternity leave is a protected statutory benefit; employers must not penalize women for using it.
Probationary employment can be terminated, but only:
- for a just cause, or
- for failure to meet reasonable standards that were made known to the employee at the time of engagement, and
- with procedural due process.
Pregnancy is not a lawful ground to terminate employment or deny regularization if the real reason is maternity-related.

3) Maternity leave in the Philippines: what employees are entitled to

A. Duration of maternity leave (general rules)

Under the Expanded Maternity Leave framework (as commonly applied in practice):

105 days maternity leave with pay for live childbirth, regardless of delivery method
60 days maternity leave with pay for miscarriage or emergency termination of pregnancy
+15 days additional paid leave if the employee qualifies as a solo parent (as recognized by law and applicable rules)
Option to extend by up to 30 days without pay (subject to procedural requirements)

These benefits generally apply regardless of civil status and are designed to cover the period of maternal recovery and newborn care.

B. Coverage: who can claim maternity leave

Maternity leave protections broadly apply to women workers across sectors, but how the benefit is funded/paid differs:

Private-sector employees covered by SSS typically receive a maternity cash benefit through SSS (commonly advanced by the employer and later reimbursed, depending on SSS process and compliance).
Government employees are usually covered under civil service rules and government compensation mechanisms rather than SSS reimbursement (unless under a different arrangement).
Non-SSS situations (e.g., insufficient contributions or non-coverage) can become complicated; employees may still have statutory leave rights, but “with pay” may depend on legal compliance, employment category, and applicable benefit rules. In practice, disputes often turn on SSS eligibility and employer compliance.

C. “With pay” in practice: SSS benefit + salary differential (private sector)

For many private employees, pay during maternity leave typically comes from:

SSS maternity benefit, and
A salary differential paid by the employer (i.e., the difference between the worker’s full pay and the SSS maternity benefit), unless the employer is lawfully exempt or the company provides an equivalent or better benefit under a CBA/company policy meeting legal standards.

Certain employers may be exempt from paying the salary differential under specific conditions (commonly discussed categories include very small retail/service establishments, distressed establishments, micro-business classifications, or those already providing equal/greater benefits). Because exemptions can be technical and evidence-driven, employers should document eligibility for any exemption.

D. Notice and documentation (typical compliance steps)

While exact forms/processes can vary by SSS updates and employer systems, the usual workflow is:

Employee notifies employer of pregnancy and intended leave dates (often with medical documentation)
Employer and employee comply with SSS filing requirements (for SSS-covered employees), including proof of pregnancy/childbirth and required forms/online submissions
Employer processes payroll handling (advancing benefit if required, paying salary differential if applicable)
Employee returns to work after leave unless separation occurs for valid reasons unrelated to maternity

E. Protection against retaliation

A central principle: an employer should not treat maternity leave as misconduct or as a negative factor in employment decisions. Penalizing an employee for pregnancy or maternity leave can trigger:

illegal dismissal findings,
discrimination-related liability, and
labor standards enforcement consequences.

4) Probationary employment in the Philippines: what it really means

A. Duration and nature

The typical maximum probationary period is up to 6 months from the employee’s start date for most roles (with narrow exceptions where a longer period is permitted by law or by the nature of the engagement).
Probation is not “at-will.” It is a trial period where the employer evaluates fitness for regularization based on reasonable standards.

B. Two lawful grounds to terminate a probationary employee

An employer may lawfully terminate a probationary employee only if:

Just cause exists (similar to regular employees)—e.g., serious misconduct, willful disobedience, gross and habitual neglect, fraud, commission of a crime against the employer, or analogous causes recognized under labor law; or
The employee fails to meet the reasonable standards for regularization that were made known at the time of engagement (commonly through the job offer, probationary contract, employee handbook, KPIs, performance standards, and documented coaching/feedback).

C. Due process still applies

Even probationary employees are entitled to procedural due process. Best practice (and commonly expected in disputes) includes:

a written notice stating the ground(s) and factual basis,
a meaningful chance to explain/submit a response (and, where appropriate, a conference), and
a written notice of decision.

Shortcuts are risky: many “probationary terminations” are invalidated not because the employer lacked concerns, but because it failed to document standards, communicate them properly at hiring, or follow due process.

5) The intersection: maternity leave while on probation

A. Does being on probation reduce maternity leave rights?

No. Maternity leave is a statutory labor standard. Probationary status does not erase maternity leave entitlements.

B. Can an employer terminate a probationary employee who is pregnant or on maternity leave?

Pregnancy itself is not a lawful ground to terminate. Termination becomes legally risky when:

the employer’s real motive is pregnancy/maternity leave, or
the timing and record strongly suggest retaliation.

However, a probationary employee may still be terminated if the employer can prove:

a valid ground (just cause or failure of known standards), and
due process was observed, and
the decision is not motivated by pregnancy and is supported by documentation independent of maternity.

C. Can an employer “decide not to regularize” because of maternity leave?

Refusing regularization because an employee took maternity leave (or because she became pregnant) is generally treated as discriminatory/retaliatory and can be attacked as illegal dismissal or unfair labor practice depending on the facts and forum. The key question is always: What is the real reason, and can it be proven?

D. Does maternity leave pause the probationary period?

This is a frequent dispute. The safest way to think about it:

Many employers treat the probationary period as running in calendar time from the start date.
Extending probation because the employee was on maternity leave can be legally sensitive unless there is a lawful basis and proper documentation.

Practical risk point: If an employer tries to extend probation unilaterally due to maternity leave, it may be challenged as circumvention of security of tenure. If the role genuinely requires an evaluation period that was not possible due to extended absence, employers typically need careful legal handling (clear policy basis, fairness, and non-discriminatory treatment; ideally, written agreement and consistent application across comparable leaves), but even then, the matter can be contested.

E. If termination happens during maternity leave, what about the benefit?

This depends on the reason and timing:

If the employee is SSS-covered and properly qualified, SSS benefit entitlement may still be claimable subject to SSS rules and documentation.
If the employer violated maternity leave obligations (e.g., withheld salary differential when required), liability may remain even if employment ends.
Illegal dismissal findings can lead to backwages and other monetary awards that may interact with maternity-related amounts, depending on adjudication.

6) Common scenarios and how Philippine labor law tends to treat them

Scenario 1: “We ended her probation because she got pregnant.”

High legal risk. Termination motivated by pregnancy/maternity is typically unlawful. If challenged, the employer must prove a legitimate ground unrelated to pregnancy and supported by records.

Scenario 2: “She was underperforming, but we only terminated after she announced pregnancy.”

Timing alone is not conclusive, but it increases scrutiny. Without strong documentation (standards given at hiring, performance evaluations, coaching memos, metrics), the case can tilt toward illegal dismissal/discrimination.

Scenario 3: “We terminated her during probation for failing standards; she’s on maternity leave.”

Legally possible only if the employer can prove:

standards were communicated at engagement,
failure is well-documented and not pretextual,
due process was observed. The bar is higher in practice because maternity context invites closer examination of motive.

Scenario 4: “We want to extend her probation because she was out on maternity leave.”

This is delicate. Unilateral extensions can be attacked. If the employer believes extension is necessary for evaluation, it should be handled with extreme care (consistency, documented rationale, and non-discrimination), understanding it may still be contested.

Scenario 5: “Probation ends while she is on leave—do we have to regularize her?”

If the probationary period lapses without a valid termination issued on time, the employee may be deemed regular by operation of law in many contexts. Employers that intend to end probation for performance reasons typically must act within the probationary period and with proper documentation and due process.

7) Employer compliance checklist (to reduce legal exposure)

For maternity leave compliance

Have a clear maternity leave policy aligned with RA 11210 framework
Ensure SSS processes are followed (reporting, contributions, required filings)
Determine whether salary differential applies and whether any exemption is legitimately available—and document it
Prevent retaliation: train supervisors not to treat pregnancy as a “performance issue”

For probationary termination compliance

Provide written probationary standards at hiring (offer, contract, KPI sheet, handbook acknowledgment)
Document coaching, performance reviews, targets, warnings (when appropriate)
Apply standards consistently across employees
Follow due process: notices + chance to respond + written decision
Avoid suspicious timing decisions without a clear paper trail

8) Employee action guide (if rights may have been violated)

Collect documents: contract, job offer, handbook acknowledgments, KPI/performance emails, notices, payslips, SSS maternity filings, medical records, chat messages with HR/supervisor
Ask for the written basis of termination/non-regularization (if not provided)
Consider DOLE SEnA (Single Entry Approach) for mediation
If unresolved, consider filing before the proper forum (often NLRC for illegal dismissal/money claims depending on circumstances)
For benefit issues, coordinate with SSS processes and document employer communications

9) Remedies and liabilities (high-level overview)

When termination is found illegal or discriminatory, consequences can include:

reinstatement (in some cases) or separation pay in lieu (depending on circumstances),
backwages,
payment of unpaid benefits (including maternity-related differentials if due), and
potential administrative sanctions under labor standards enforcement.

Outcomes vary heavily with facts, documentation, and the specific cause invoked.

10) Key takeaways

Maternity leave is a protected right and applies even to probationary employees.
Probation is not at-will: termination must be for just cause or failure of known standards, with due process.
Pregnancy/maternity must not be the reason for termination or denial of regularization.
Employers should document standards and performance carefully; employees should preserve records and seek DOLE/SSS assistance when needed.

If you want, I can turn this into a tighter “publication-style” piece (with headings, footnote-style references to the commonly cited laws and implementing rules, and a short FAQ section) or a practical memo for HR/management versus employees.