Paying Maternity Benefits with Final Pay Upon Resignation (Philippines)

This explainer is for private-sector employment in the Philippines. It synthesizes the rules under the Expanded Maternity Leave Law (RA 11210 and its IRR), the SSS Law (RA 11199), Labor Code regulations on wages/final pay, and standard payroll practice. It is not legal advice.

Executive takeaways

Maternity benefits are not “final pay.” They are a statutory leave with full pay that becomes due when the pregnancy contingency (childbirth/miscarriage/emergency termination) occurs. Do not delay the maternity payout until clearance/back-pay processing.
Who pays depends on employment status at the time of the contingency:
- Employed when the contingency happens: Employer advances the SSS maternity benefit in full and is reimbursed by SSS; employer also pays any salary differential (unless exempt).
- Separated before the contingency: SSS pays the member directly. The former employer has no obligation to advance the benefit.
Final pay (a.k.a. last pay/back pay) is a separate obligation typically released within ~30 days from separation and covers unpaid wages, pro-rated 13th-month, monetized unused SIL, tax refund, and authorized deductions—not the SSS maternity benefit (unless, in practice, the employer happens to settle all open amounts at the same time without delaying what was already due).

Legal bases (plain-English)

Expanded Maternity Leave Law (EMLL), RA 11210 + IRR
- 105 days with full pay for live childbirth; +15 days if the mother is a solo parent; 60 days for miscarriage or emergency termination of pregnancy (ETP).
- Up to 7 days of the 105 may be allocated to the child’s father or an alternative caregiver (rules apply).
- Leave is continuous and uninterrupted, with limited exceptions set in the IRR.
- Employers must pay salary differential (difference between “full pay” and the SSS maternity cash benefit), unless exempt under the IRR (e.g., certain distressed establishments, micro-businesses/BMBEs, etc.).
SSS Law & SSS circulars (private sector)
- Employer advances the SSS maternity cash benefit to the employee and then reclaims from SSS—if the employee was employed when the contingency happened.
- If the member was already separated when the contingency happened, SSS pays her directly (no employer advance).
- Basic eligibility: at least three (3) posted SSS contributions within the 12-month period immediately preceding the semester of contingency (SSS has exact computation rules).
Labor Code & DOLE guidance on final pay
- Final pay (unpaid wages, 13th-month, SIL, etc.) is typically released within about 30 days from separation, unless a more favorable company/CBA timeline applies.

Key definitions

Contingency: The event that triggers entitlement (childbirth/miscarriage/ETP).
Full pay (EMLL sense): The amount the employee should receive during maternity leave. It is the SSS maternity cash benefit plus any salary differential the employer must shoulder (unless exempt).
Salary differential: Full pay − SSS maternity cash benefit. Often covers basic pay and fixed regular allowances normally received during workdays, consistent with the IRR.
Final pay: Amount due because employment ended (not because of maternity leave), e.g., unpaid wages to last day, pro-rated 13th-month, monetized unused Service Incentive Leave (SIL), tax refund, and other terminal items.

Entitlements & eligibility snapshot

Number of days:
- 105 days with full pay for live birth
- +15 days if solo parent (requires valid solo parent documentation)
- 60 days with full pay for miscarriage/ETP
Allocation: Up to 7 days from the mother’s 105 may be transferred to the father or a qualified caregiver (subject to IRR conditions). The additional 15 days for solo parents is not transferable.
SSS eligibility: At least 3 monthly contributions in the 12 months immediately before the semester of contingency; timely SSS notification and submission of documents.

Who pays—and when—relative to resignation

A. Employee resigns before childbirth/miscarriage (contingency happens after separation)

Payer: SSS pays the member directly (assuming contribution eligibility).
Employer: No duty to advance the SSS maternity cash benefit and no obligation to pay salary differential (not the employer at the time of contingency).
Final pay: Process and release per normal separation; maternity benefit is not part of final pay.

B. Employee is employed when contingency happens, then resigns during or after maternity leave

Payer: Employer must advance the entire SSS maternity cash benefit (for the full entitlement days) and later seek reimbursement from SSS.
Salary differential: Employer pays it (unless exempt), even if the employee resigns later.
Final pay: Separate from the maternity payout. Release remaining terminal items within the normal back-pay timeline.
Important: Do not wait for resignation or clearance to release the maternity benefit that is already due under the EMLL.

C. Employee tenders resignation effective end of maternity leave

Treat maternity benefits exactly the same as in B above. Final pay will not include the SSS maternity cash benefit if it has already been paid (as it should); it will include the usual terminal items.

D. Fixed-term contract or project ends during maternity leave

If the contingency occurred while the employee was still employed, the employer should have advanced the SSS maternity cash benefit (and salary differential unless exempt) for the entitlement days. Contract expiry doesn’t extinguish the maternity benefit that already accrued.
For any period beyond employment if the contingency occurred after separation, SSS pays directly.

Bottom line: Liability to advance the SSS maternity cash benefit is pegged to employment status at the time of contingency. Final pay obligations are pegged to separation.

May an employer “bundle” the maternity benefit with final pay?

Best practice: No. The maternity benefit has its own due date under law; delaying it to coincide with back-pay processing risks non-compliance.
If an employer chooses to settle everything at once, they must ensure the maternity amount is not delayed beyond when it is legally due and is not subjected to unauthorized deductions or offsetting.

What goes into final pay upon resignation (typical items)

Unpaid salary up to the last actual day worked (or last paid leave day if any).
Pro-rated 13th-month pay (at least 1/12 of basic salary earned in the year).
- Days paid during maternity leave that constitute basic salary from the employer (e.g., salary differential) are commonly treated as part of basic salary earned.
- The SSS maternity cash benefit itself is not employer salary and is not part of 13th-month computation.
Monetized unused SIL (up to the statutory 5 days, if unused and not forfeited under a valid policy).
Tax refund (if applicable), and other amounts due under company policy/CBA.
Authorized deductions (e.g., notarized salary loans, company property not returned) consistent with the Labor Code rules on lawful deductions.
- Do not deduct against the SSS maternity cash benefit portion; treat deductions against wage items only and with written authorization where required.

Tax & payroll treatment (practical guide)

SSS maternity cash benefit: Generally not subject to income tax or withholding (it is a social security benefit).
Salary differential: Typically treated as taxable compensation (paid by the employer) and subject to usual withholding and contributions, because it forms part of the employee’s full pay during leave.
13th-month: Computed on basic salary earned from the employer. The SSS benefit is not “basic salary.” Salary differential commonly counts (because it is employer-paid compensation for leave days).

Always align with your payroll tax advisor/CPA for your specific setup and the latest BIR interpretations.

Deductions, offsetting, and “unserved notice”

Employers cannot forfeit statutory benefits (maternity benefit, earned wages) because the employee failed to render a 30-day notice.
Deductions/offsets require a lawful basis (law, regulation, or written authorization) and must not reduce pay below what the law protects.
Do not offset the SSS maternity cash benefit against company receivables. Handle any legitimate receivables against wage/terminal items only, observing legal limits.

Documentation & timelines

For the employee (private sector):

Notify the employer/HR of pregnancy and expected delivery date; submit SSS requirements (online portal is standard).
Ensure SSS contributions are posted and sufficient.
Submit maternity benefit application and documents (e.g., proof of contingency) within SSS timelines.
If resigning before contingency, apply directly with SSS and keep your former employer informed for records.

For the employer/HR:

Upon notice, calendar and budget the maternity payout (SSS benefit advance + salary differential, unless exempt).
Advance the SSS maternity cash benefit when due (do not wait for resignation or clearance).
File for SSS reimbursement promptly after paying the employee, following SSS e-portal procedures.
If separation occurs, process final pay (wages, 13th-month, SIL, tax refund, lawful deductions) within the usual ~30-day release window.

Special scenarios & tips

AWOL during pregnancy/leave: AWOL issues don’t cancel a maternity benefit that has already accrued from a valid contingency. Address attendance separately through due process; don’t withhold maternity amounts already due.
Company closure/retrenchment: If contingency happened while employed, the obligation to advance the SSS benefit arose. If closure precedes contingency, SSS pays direct.
Multiple employers: Each covered employer handles its own obligation relative to employment at the time of contingency. Coordinate to avoid duplicate advances.
Transfer of 7 days to father/caregiver: This reduces the mother’s available days and requires documentation. It does not change who pays the mother’s benefit vis-à-vis resignation.

Computation overview (high-level)

SSS maternity cash benefit = 100% of the member’s Average Daily Salary Credit (ADSC) × number of entitled days (105/120 for solo parent/60).
- The ADSC is computed from the member’s Monthly Salary Credits in the period prescribed by SSS (the semester-of-contingency rules apply).
Salary differential (if not exempt) = Full pay the employee would have received during the leave minus the SSS cash benefit.
- “Full pay” typically means basic wage plus fixed regular allowances normally paid during workdays (per IRR guidance).

Because SSS updates circulars from time to time, always follow the exact computation steps in the current SSS forms/portal.

Practical compliance checklist (HR)

Confirm employment status at contingency (drives who pays).
Verify SSS eligibility and posted contributions.
Advance the SSS maternity benefit on time; don’t tie it to clearance.
Assess salary differential and whether the organization is exempt.
Prepare SSS reimbursement filing.
If resignation occurs, compute final pay separately and release within the standard timeline.
Apply lawful deductions only; never net against the SSS benefit portion.
Keep documentation (notices, applications, proof of payment, reimbursement filings).

FAQs (quick answers)

Can we pay the maternity benefit together with back pay? You can, but only if doing so does not delay the maternity payout beyond when it’s due. Best practice is to pay the maternity benefit when due, and process final pay separately.
If the employee resigns before giving birth, who pays? SSS pays directly. The former employer no longer advances the benefit.
If she resigns during leave, do we still pay the full 105/60 days? If the contingency occurred while she was your employee, the full entitlement accrued; you advance the SSS benefit (full days) and pay any salary differential unless exempt.
Is the maternity benefit taxable? The SSS cash benefit is generally not taxable; the salary differential is commonly treated as taxable compensation.
Does maternity leave count toward 13th-month pay? The SSS benefit part does not. Employer-paid salary differential is typically treated as part of basic salary for 13th-month computations.

Final word

When resignation and maternity overlap, anchor your decisions on when the contingency happened. If she was employed at that moment, advance the SSS benefit (and pay salary differential unless exempt) regardless of later separation. Treat final pay as a separate obligation, on its own timetable and rules. If she was already separated, steer her to SSS direct payment and process only the ordinary terminal benefits.