Returning to Work Early Under the 105-Day Expanded Maternity Leave: How Are Pay Differentials Computed? (Philippine context)

This is a practical legal explainer for HR, payroll, and employees. It covers the core rules under Republic Act No. 11210 (the “105-Day Expanded Maternity Leave Law”), its Implementing Rules and Regulations (IRR), related SSS rules, and how to handle early returns to work and salary differentials. It is not a substitute for legal advice on a specific case.

Snapshot: the big ideas

Basic entitlement. For live childbirth, a covered female worker gets 105 calendar days with full pay, plus an optional 30 days without pay; solo parents get an extra 15 days with full pay (total 120). For miscarriage or emergency termination of pregnancy (ETP), 60 days with full pay.
“Full pay.” In the private sector, the employee’s pay during maternity leave is made up of (1) the SSS cash maternity benefit and (2) the employer-paid salary differential (the gap between full pay and the SSS amount), unless the employer is exempt from paying the differential under the IRR. In the public sector, the agency pays full salary under civil service rules (no SSS).
Counting days. Leave days are continuous calendar days (weekends/holidays included), typically starting on the date of delivery (or earlier/later if medically advised per IRR/company policy).
Transferable 7 days. Up to 7 days of the 105 may be transferred to the child’s father or an alternate caregiver (subject to statutory conditions). The father/alternate caregiver’s pay for those 7 days is shouldered by their own employer.
Early return to work. The law makes maternity leave a guaranteed minimum rest period and the employer cannot compel an early return. In practice, some employers allow an employee to resume work early upon the employee’s written request and medical clearance. When this happens, pay is split: (a) days on leave are paid as maternity leave (SSS + salary differential), and (b) days actually worked are paid as regular wages (no maternity differential for those days).
Core formula. For private sector: Salary Differential = Full-Pay Value of Maternity Leave Days Availed − SSS Maternity Benefit for the Same Days. Compute it on days actually availed as maternity leave (not on days worked after an early return).

Who is covered, at a glance

Private-sector employees (SSS-covered), including those with multiple employers, and those separated/terminated within a period close to childbirth but with qualifying SSS contributions (SSS pays directly in such cases).
Public-sector employees (CSC-covered) receive full pay from their agencies (no SSS reimbursement mechanics).
Self-employed/voluntary SSS members receive the SSS cash maternity benefit directly from SSS (no “salary differential” since there’s no employer).

“Full pay” and “salary differential,” defined

Private sector

SSS Maternity Benefit (cash) Paid at 100% of the SSS average daily salary credit (ADSC) multiplied by the applicable number of days (105/120/60). The ADSC is derived from your SSS contribution history before the “semester of contingency.”
Salary Differential (employer-paid) The difference between the employee’s full pay for the maternity leave period and the SSS cash benefit for the same period.
- Full pay typically means the employee’s basic salary plus fixed regular allowances (e.g., COLA, fixed transport/rice allowance) immediately prior to the leave, pro-rated to a daily equivalent and multiplied by the number of maternity leave days actually availed.
- Excludes strictly variable pays like overtime, holiday premium, sales commissions/bonuses that are not fixed or guaranteed.

Exemptions. Certain employers are exempt from paying the salary differential under the IRR (e.g., distressed establishments, registered BMBEs, and other enumerated categories). Exemption does not affect the employee’s SSS cash benefit; it only removes the employer’s obligation to top-up the difference.

Public sector

Agencies pay full salary during the statutory leave; there’s no SSS component and therefore no “salary differential.”

Early return to work: may an employee do it?

Employer cannot force it. The 105 days is a minimum, and it exists to protect maternal health and recovery as a matter of public policy.
Voluntary early return. The IRR’s spirit is to ensure rest, but many employers permit early resumption if:
1. the employee asks in writing (express waiver of unused leave days), and
2. presents a fit-to-work medical clearance from a competent physician, and
3. HR/payroll clearly recomputes leave and documents the cut-off date.
No “work while on leave.” Once the employee performs work, that day is not a leave day. Do not classify a workday as “maternity leave” (to avoid double-pay or benefits issues).
Breastfeeding/lactation. Upon return, ensure lactation breaks and facilities are provided under the Expanded Breastfeeding Promotion Act (RA 10028) and related DOLE rules.

How to compute the salary differential when returning early

Principle: Compute the differential only for days actually availed as maternity leave. From the day the employee returns to work, pay regular wages, and stop accruing maternity differential.

Step-by-step (private sector)

Determine the daily full-pay equivalent.
- Monthly-paid (typical payroll practice): Full monthly rate (basic + fixed allowances) ÷ 30 to get a daily rate for calendar-day benefits.
- Daily-paid: Use the applicable daily rate (ADR) in effect on the start of the leave.
Identify the number of leave days actually used.
- Live birth: up to 105; Solo parent: up to 120; Miscarriage/ETP: up to 60.
- If the employee returns early, count up to the last day before resumption.
- If 7 days are transferred to the father/alternate caregiver, the mother’s own leave days reduce by up to 7 (e.g., 98 instead of 105).
Compute the Full-Pay Value for those days. Daily full pay × number of leave days availed.
Get the SSS cash benefit for the same days.
- If SSS issued a total amount for 105/120/60 days, derive the SSS daily rate (Total ÷ statutory days), then multiply by the leave days actually availed.
- If SSS or your system already pro-rated for the shorter period, use that figure.
Salary Differential = Full-Pay Value − SSS amount (for the same days).

Important: If the employer advanced the full 105-day SSS amount and the employee comes back early, avoid double compensation. Best practice is to (a) pro-rate the differential to the actual leave days, and (b) reconcile any excess advance via payroll adjustment with the employee’s written authorization or as allowed by your policy/IRR guidance.

Worked examples (numbers are illustrative)

Assumptions for examples A–C:

Private-sector employee; monthly basic ₱30,000 + fixed allowances ₱3,000 = ₱33,000.
Daily full-pay (30-day factor) = ₱33,000 ÷ 30 = ₱1,100.
SSS daily cash rate (from SSS notice): ₱700.

A) Full 105-day leave (live birth)

Full-Pay Value = ₱1,100 × 105 = ₱115,500.
SSS Amount = ₱700 × 105 = ₱73,500.
Salary Differential = ₱115,500 − ₱73,500 = ₱42,000.

B) Early return after 80 days (live birth)

Full-Pay Value = ₱1,100 × 80 = ₱88,000.
SSS Amount (pro-rated) = ₱700 × 80 = ₱56,000.
Salary Differential = ₱88,000 − ₱56,000 = ₱32,000.
From Day 81 onward: pay regular wages; no maternity differential.

C) Solo parent, avails 90 of the 120 days then returns early

Full-Pay Value = ₱1,100 × 90 = ₱99,000.
SSS Amount (pro-rated) = (₱700 × 90) = ₱63,000.
Salary Differential = ₱99,000 − ₱63,000 = ₱36,000.
Remaining 30 days are waived by early return.

D) Mother allocates 7 days to the father; she avails 98 days

Full-Pay Value (mother) = ₱1,100 × 98 = ₱107,800.
SSS Amount (mother, pro-rated for payroll reconciliation) = ₱700 × 98 = ₱68,600.
Salary Differential (mother) = ₱107,800 − ₱68,600 = ₱39,200.
Father’s 7 days are paid by his employer at his full pay (no SSS component).

Note on allocation mechanics: The cash maternity benefit from SSS is issued to the mother under SSS rules; the 7-day allocation is a time-off allocation in favor of the father/alternate caregiver and is paid by the father/alternate’s employer. For payroll reconciliation, many employers pro-rate the mother’s salary differential to the days she actually avails (98, in this example).

Tax and contribution treatment (private sector)

SSS cash maternity benefit is not subject to withholding tax and is not compensation for purposes of SSS/PhilHealth/Pag-IBIG contributions.
The salary differential is generally treated like regular compensation:
- Subject to withholding tax (unless the employee is below taxable thresholds).
- Counts toward 13th-month pay base (because it is employer-paid compensation).
- Subject to SSS/PhilHealth/Pag-IBIG contributions if your company’s policy and the agencies’ current guidance treat it as part of covered compensation (many do).
In months when the employee receives only SSS benefit (no employer pay), you typically don’t withhold contributions (because there’s no covered compensation). In months when the salary differential is paid, withhold as normal.

Always align with your latest BIR/SSS/PhilHealth/Pag-IBIG circulars and your payroll system’s coverage definitions.

Common edge cases & answers

Employee wants to work part-time during leave. Avoid this. If any work is performed, that day is not a maternity leave day; reclassify it as a workday and adjust the leave and salary differential.
Separated before delivery but SSS-qualified. SSS may pay the benefit directly to the mother. No employer salary differential (no employer–employee relationship).
Multiple employers. Each private employer may be required to pay a salary differential on the portion of leave that relates to that employment, while SSS computes a single maternity benefit from the member’s contribution record.
Miscarriage/ETP. 60 days with full pay; compute salary differential on 60 days (or fewer if returning early with clearance).
Death of the child. The mother is still entitled to the full leave (health-protection rationale). Early return remains voluntary.
Exempt employers. If lawfully exempt from the salary differential, the employee still receives the SSS cash benefit; the employer simply has no top-up obligation.

Documentation & payroll hygiene

Employee request for early return (signed) indicating the exact return-to-work date and acknowledging the waiver of unused leave days.
Fit-to-work medical certificate from a licensed physician.
HR memo/payroll ticket showing:
- last leave day and first workday;
- recomputed differential (and any necessary reconciliation if an advance was made);
- tax/contribution treatment.
SSS records (notification/claim documents, benefit computation) kept on file for audit.
Father/alternate caregiver: written allocation by the mother of up to 7 days; father’s employer processes paid leave separately.

Policy language you can adapt (private sector)

Early Resumption of Work During Maternity Leave The Company recognizes maternity leave as a health-protective benefit under RA 11210. The Company will not require nor pressure any employee to return to work early. Upon the employee’s written request and presentation of a fit-to-work medical clearance, the Company may allow an early return to work. In such case, maternity leave shall be reckoned up to the calendar day preceding actual resumption. The salary differential shall be computed only for leave days actually availed; days worked shall be compensated as regular wages with standard tax and contribution treatment. Any advances shall be reconciled with the employee’s written authorization. Lactation periods and facilities shall be provided in accordance with RA 10028.

Quick checklist (HR/payroll)

☐ Confirm coverage (private vs public; solo parent; miscarriage/ETP).
☐ Determine daily full pay (basic + fixed allowances).
☐ Get SSS daily rate (from SSS computation/notice).
☐ Count actual leave days (stop on early return date).
☐ Compute salary differential = Full-Pay Value − SSS (same days).
☐ If 7 days transferred, reduce mother’s leave days accordingly and process father/alternate’s leave with their employer.
☐ Handle withholding & contributions correctly.
☐ Keep documentation and medical clearance.
☐ Provide lactation breaks after return.

Final notes

The law’s intent is to guarantee rest and recovery. Early return should be employee-initiated, physician-cleared, and well-documented.
For salary differential, the cleanest, least-disputed approach is to compute only on the maternity leave days actually availed and treat worked days as ordinary workdays.
Agency circulars (SSS, DOLE, CSC, BIR, PhilHealth, Pag-IBIG) update from time to time. For a live case, it’s wise to confirm the latest before you finalize payroll.

If you want, tell me the actual monthly pay, fixed allowances, and the SSS total stated on the employee’s claim notice—I’ll run the exact pro-rated numbers for your scenario.