Paternity Leave Eligibility for Employees on Forced Leave Without Pay (Philippines)

Overview

Paternity leave in the Philippines is governed primarily by the Paternity Leave Act of 1996 (Republic Act No. 8187) and its implementing rules. It grants seven (7) days of leave with full pay to a married male employee for each of the first four (4) deliveries (including childbirth or miscarriage) of his legitimate spouse with whom he is cohabiting. The law applies to both the private sector (through DOLE regulations) and the government (through Civil Service Commission rules), with substantially parallel standards.

This article focuses on a nuanced scenario: paternity leave entitlement when the employee is on forced leave without pay (e.g., furlough, “floating” status, preventive suspension without pay, or bona fide temporary suspension of operations).

Core Eligibility Requirements (Quick Recap)

To qualify for statutory paternity leave:

Status: The employee is male and married to the mother.
Legitimacy & Cohabitation: The spouse is legitimate and the couple is cohabiting (living together as husband and wife; some employers accept proof of a shared domicile even if the employee works off-site or is deployed).
Employment at the Time of Delivery: The employee must be currently employed at the time of the spouse’s delivery or miscarriage.
Limit: Benefit applies to the first four (4) deliveries only.
Notice & Documentation: The employee informs the employer of the pregnancy and expected date of delivery within a reasonable period, and submits required documents (e.g., marriage certificate; birth certificate when available; or medical certificate/clinical record in case of miscarriage).
Timing of Availment: The 7 days are typically availed within 60 days from the date of delivery/miscarriage.
Pay: The leave is with full pay (basic salary and fixed allowances normally received).

Non-convertible to cash, not cumulative, and generally not chargeable to other leave credits unless provided by company policy or CBA.

What Counts as “Forced Leave Without Pay”?

In practice, this might include:

Bona fide temporary suspension of operations (e.g., lack of market, repairs, calamity), often capped by labor standards at up to six (6) months. Employment ties generally remain during the suspension.
“Floating” or furlough status without work and without pay.
Preventive suspension without pay pending investigation.
Company-imposed leave without pay due to business exigencies.

In all these, the employment relationship subsists (unless and until separation/termination occurs). That distinction is crucial for paternity leave.

Key Question: Is a Male Employee on Forced Leave Eligible for Paternity Leave?

Short answer: Yes, if he remains employed and otherwise meets the statutory conditions (marriage, cohabitation, within first four deliveries, notice, documentation, timing). Paternity leave is a statutory benefit; being on forced LWOP does not, by itself, disqualify the employee so long as he is still an employee at the time of the qualifying event (delivery/miscarriage) and avails within the statutory window.

However, two practical issues arise: (A) timing and (B) payability when there are no scheduled workdays or no payroll due to suspension of operations.

Timing & Availment While on LWOP

Avail During LWOP: The law envisions leave within 60 days of the delivery/miscarriage. If the employee is still on forced LWOP during this 60-day window, he can apply for paternity leave.
Avail Upon Return: If the employee resumes work within the 60-day window, he may schedule and take the 7 days then.
If LWOP Exceeds 60 Days: If the forced LWOP extends beyond 60 days from the delivery/miscarriage, statutory paternity leave may lapse, unless a CBA, company policy, or management discretion allows a later availment.

Practical tip: File the leave application immediately (even during LWOP) to establish your claim within the statutory period, and coordinate on when the 7 days will run (during LWOP vs. upon return).

“Full Pay” During Forced LWOP: When Is It Actually Paid?

This is where practice diverges and where clear internal policy helps. Consider:

Principle: Paternity leave is with full pay. Statutory paid leaves are exceptions to the “no work, no pay” rule.
No Workdays / No Payroll: If operations are suspended or the employee is not scheduled to work, employers often query what “full pay” attaches to. Two prevailing approaches exist in practice:
- Approach 1 (Strict Timing): If the 7-day leave falls entirely within a period where there are no payable workdays (e.g., full company shutdown), some employers treat the pay component as not practically due, asserting there is no wage to replace.
- Approach 2 (Benefit Survives, Pay upon Return): Other employers recognize the statutory entitlement and either (a) allow deferred consumption of the 7 days upon resumption (provided still within 60 days), with pay then; or (b) grant the 7 days as paid even if the company is shut, honoring the wage equivalent despite no operations.
Best-Practice Resolution:
- If return to work occurs within 60 days: Consume the 7 days after resumption, and pay the corresponding 7 days at full pay.
- If no return within 60 days: Employers may treat the entitlement as lapsed by law; however, a liberal policy (or CBA) may extend or cash-equivalize—though not required by statute.

For government personnel, agencies commonly record the approved paternity leave but may disallow pay if the period overlaps a non-pay status, unless the employee returns and consumes the leave within the allowed window. Always check your agency’s HR rules.

Special Scenarios

1) Delivery Occurs During Temporary Suspension of Operations (up to 6 months)

The employee remains employed; eligibility stands.
If the employee cannot practically consume the leave (no workdays), request HR to book the 7 days immediately upon resumption (still within 60 days).

2) Preventive Suspension Without Pay

Employment continues; eligibility stands unless the employee is dismissed before the leave is availed.
If dismissal occurs before consummation of leave, entitlement to future days with pay ends with the employment relationship. (Backpay or wage-loss theories rarely succeed for unconsumed statutory leaves unless a policy/CBA says otherwise.)

3) Staggered Availment

Law contemplates a single 7-day block, but many employers allow split (e.g., 3 + 4 days) within 60 days. Get explicit HR approval.

4) Out-of-Town/Sea-based/Deployed Workers & “Cohabitation”

“Cohabitation” is usually interpreted substantively: a shared household when physically together and an ongoing marital union (not legally separated). Physical presence at the moment of delivery is not a statutory requirement, but proof of cohabitation may still be asked.

5) Common-Law Partners

Not covered by RA 8187 (statutory paternity leave is for legitimate spouses). Some CBAs/company policies provide “partner” or “parental” leave—purely contractual.

6) Multiple Employers

The law grants one entitlement per delivery. In practice, avoid double recovery. Coordinate with HRs if you hold two jobs.

Documentation Checklist

Paternity Leave Application indicating target dates; ideally filed before the expected delivery.
Marriage Certificate (PSA or local civil registry copy).
Proof of Delivery/Miscarriage (e.g., birth certificate, medical certificate, hospital/clinic record; fetal death certificate where applicable).
Proof of Cohabitation (if requested): IDs, utility bills, barangay certificate, lease contracts showing shared address.
Notice of Pregnancy/EDD (email or form given to HR before delivery).

Interaction with Other Laws & Benefits

Expanded Maternity Leave (RA 11210): Independent from paternity leave. The mother’s benefits don’t reduce or expand the father’s statutory 7 days.
Solo Parents Welfare Act (as amended): Distinct entitlements; doesn’t increase paternity days.
Company Policies/CBAs: May improve (e.g., longer paid days, broader coverage to non-married partners) but cannot reduce RA 8187’s minimums.
Taxation: Paid paternity leave forms part of taxable compensation.

Employer Compliance & Penalties

Denial of statutory paternity leave without lawful basis can expose employers to penalties under RA 8187 and labor standards enforcement.
HR should adopt a clear protocol for cases where delivery occurs during forced LWOP or suspension of operations, ideally providing:
- A mechanism to file within 60 days;
- An option to consume upon resumption (if within 60 days); and
- Guidance on payability where there are no scheduled workdays.

Practical Guidance for Employees on Forced LWOP

Notify HR early of the pregnancy and expected due date.
File your paternity leave as soon as delivery occurs (or earlier with tentative dates).
Ask HR to calendar your 7 days upon resumption if you’re on LWOP, so you receive full pay for those days.
Keep records (emails, forms, receipts).
Watch the 60-day clock. If return will occur after 60 days, request written guidance; your employer may liberally allow equivalent arrangements under policy/CBA, but this is discretionary.

Practical Guidance for Employers/HR

State in policy how RA 8187 applies during shutdowns/furloughs:
- Confirm that eligibility continues while employment subsists.
- Allow booking upon resumption within 60 days to preserve the with-pay nature of the benefit.
- Clarify treatment if suspension exceeds 60 days.
Maintain a document checklist and clear approval flow.
Train supervisors to encourage early notice and support documentation.

FAQs

Q: My wife gave birth while I was on forced LWOP due to a plant shutdown. Am I still entitled? A: Yes—if you remain employed, are married and cohabiting, and you file within 60 days. Coordinate to consume the 7 days upon return (within 60 days) so that they are with pay.

Q: Can I be paid the 7 days even if the company is completely shut and there’s no payroll? A: Practices differ. Many employers pay upon return when you actually consume the 7 days (within 60 days). Some liberal employers pay immediately despite shutdown. Ask HR for your company’s documented approach.

Q: What if my forced LWOP lasts more than 60 days after delivery? A: The statutory window may lapse. You can request a policy/CBA exception, but it’s not guaranteed by law.

Q: Does a miscarriage count? A: Yes. Miscarriage is included among the covered “deliveries” for purposes of paternity leave, still subject to the first four deliveries cap and documentation.

Q: We’re legally married but currently living apart because of work. Are we disqualified for lack of “cohabitation”? A: Not necessarily. Many HRs accept proof that you maintain a shared marital home and are living together as husband and wife when practicable (deployment/assignments don’t automatically negate cohabitation). Provide reasonable proof.

Bottom Line

Eligibility survives forced LWOP as long as the employment relationship continues and all statutory elements are met.
The with-pay feature is best preserved by consuming the leave upon resumption within 60 days of the delivery/miscarriage.
If the forced LWOP extends beyond 60 days, the statutory entitlement may expire, absent a more generous policy/CBA.

This article provides general information for educational purposes and is not a substitute for legal advice. For specific cases, consult your HR or a Philippine labor-law practitioner.