Below is a comprehensive discussion of maternity leave rights for probationary employees in the Philippines, including the legal framework, key provisions under Philippine law, and practical considerations for both employees and employers.

1. Introduction

Maternity leave is a fundamental labor right that safeguards the well-being of women employees during pregnancy and childbirth. In the Philippines, various laws protect this right, regardless of employment status—whether regular, contractual, or probationary. It is a common misconception that probationary employees do not enjoy maternity leave benefits. However, under Philippine law, pregnant employees, including those on probation, generally have the same rights to maternity leave benefits as other employees, subject to specific requirements set by law.

2. Legal Framework

Several pieces of legislation and regulations govern maternity leave in the Philippines. The primary laws and regulations include:

The 1987 Philippine Constitution
- Declares that the State shall protect working women by providing safe and healthful working conditions, taking into account their maternal functions.
Labor Code of the Philippines (Presidential Decree No. 442, as amended)
- Contains general provisions on women's employment, including protection against discrimination.
Republic Act No. 11210, or the “105-Day Expanded Maternity Leave Law”
- Significantly expanded the maternity leave duration and coverage for female workers in both the government and private sectors.
Implementing Rules and Regulations (IRR) of R.A. 11210
- Details the specific guidelines and procedures to be followed by employers and employees.
Relevant Department of Labor and Employment (DOLE) issuances and SSS Circulars
- Address administrative and procedural requirements for availing maternity leave benefits (e.g., filing requirements, notifications).
Jurisprudence (Supreme Court decisions)
- Clarifies application of the law in cases involving termination of employment and maternity-related benefits.

3. Applicability of Maternity Leave to Probationary Employees

3.1. General Coverage Under R.A. 11210

The Expanded Maternity Leave Law explicitly states that it applies to “all female workers in the public and private sectors.” It does not differentiate based on tenure (probationary vs. regular) or type of contract. As a result, a pregnant employee who is on probation generally has the right to avail of maternity leave provided that she meets basic requirements, such as:

She must have made the requisite contributions to the Social Security System (SSS) to avail of maternity benefits.
She must notify her employer of her pregnancy and of her intention to avail of maternity leave within the prescribed period (if practicable).

3.2. Non-Discrimination and Protection Against Dismissal

Philippine labor laws, including the Labor Code, prohibit discrimination based on pregnancy. An employer cannot legally terminate a probationary employee solely because she is pregnant or about to take maternity leave. Dismissal on the ground of pregnancy would be tantamount to gender discrimination, which is unlawful.

3.3. Probationary Employment and Assessment for Regularization

A probationary employee is one hired on a trial basis, typically for six months (unless a longer or shorter period is justified by the nature of the job and the agreement).
Employers are obligated to assess the performance of the probationary employee according to reasonable standards made known to the employee at the time of hiring.
If the employee goes on maternity leave during the probationary period, the employer may extend the probation period to ensure there is sufficient time to evaluate performance. However, any such extension or decision must be:
- In line with written company policy and standards.
- For valid performance-related reasons and not simply pregnancy itself.

4. Duration and Benefits Under the Expanded Maternity Leave Law

4.1. Duration of Leave

Under the Expanded Maternity Leave Law (R.A. 11210), the maternity leave period is:

105 days for live childbirth, with full pay.
120 days if the female worker qualifies as a solo parent under R.A. 8972 (Solo Parents’ Welfare Act).
60 days for miscarriage or emergency termination of pregnancy.

Full pay generally comes from two sources:

SSS Maternity Benefit – The Social Security System reimburses the employer for the maternity benefit equivalent to the employee’s average daily salary credit, subject to the maximum benefit limits.
Employer’s share – If the employee’s actual salary is higher than the SSS benefit, some employers supplement the difference to ensure “full pay” in compliance with law and their own company policies (though the extent of “full pay” can vary depending on the employer’s policies, collective bargaining agreements, or specific rules).

4.2. Allocation of Leave Credits

A portion of the 105-day leave may be allocated to the child’s father or an alternate caregiver (up to 7 days of transferable leave), provided that certain conditions under the law are met and that the request is filed properly.

5. Eligibility Requirements

To avail of the maternity benefit, the pregnant employee (including those on probation) should:

Have at least three (3) monthly contributions to the SSS within the 12-month period immediately preceding the semester of childbirth or miscarriage.
Notify her employer of her pregnancy and the expected date of delivery. Employers typically require submission of a maternity notification form and a medical certificate.
File the necessary documents with the SSS (if employed, the employer typically facilitates this process).

6. Procedural Considerations

Notification to Employer
- As soon as a probationary employee becomes aware of her pregnancy, she should inform her employer. Early notice allows the employer to plan operations and ensure timely filing of SSS and internal documentation.
Submission of SSS Documents
- The employee must submit the SSS Maternity Notification and other supporting documents (e.g., proof of pregnancy, ultrasound results, or medical certificates) as required.
Employer Filing
- The employer files the necessary forms with the SSS to claim reimbursement of the maternity benefits. Employers typically advance the maternity benefit and then get reimbursed by the SSS.
Return-to-Work Arrangements
- After maternity leave, the probationary employee is entitled to return to her position or to a substantially equivalent position without loss of seniority rights (insofar as that applies to her status) or reduction in pay.
- If the probationary period is “tolled” or extended because of the leave period, the remaining balance of her probationary period may continue once she returns to work. However, any extension must be properly grounded on the need to evaluate her performance, rather than used as a pretext to discriminate.

7. Job Security for Pregnant Probationary Employees

7.1. Prohibition Against Dismissal Due to Pregnancy

Terminating a probationary employee purely because she is pregnant or will take maternity leave is unlawful and can result in claims of illegal dismissal and discrimination. If such a case goes to labor arbitration or the National Labor Relations Commission (NLRC), employers may be required to reinstate the employee with back pay and could face monetary penalties or damages.

7.2. Grounds for Dismissal During Probation

During probation, dismissal may still be justified on grounds other than pregnancy, such as:

Failure to meet the reasonable standards for regularization.
Violation of company rules and regulations.
Gross or habitual neglect of duties.
Fraud or willful breach of trust.

However, these grounds must be proven and cannot be mere pretexts to circumvent maternity leave protections.

8. Common Misconceptions

“Probationary employees are not entitled to maternity leave.”
- False. Under the Expanded Maternity Leave Law, all pregnant female employees in the private sector, regardless of employment status, are entitled to the benefit as long as the basic eligibility requirements (SSS contributions, etc.) are met.
“Probationary employees can be dismissed immediately upon confirmation of pregnancy.”
- False. Pregnancy is not a valid ground for dismissal.
“The maternity leave cannot be availed if it falls within the six-month probationary period.”
- False. The probationary employee is still entitled to maternity leave. The employer must respect this leave, though it may choose to extend the probationary period for a justifiable performance-related reason.

9. Best Practices for Employers and Employees

9.1. For Employers

Establish Clear Policies: Have a written policy on maternity leave that applies equally to all employees regardless of status.
Provide Information: Inform new hires (including probationary ones) about their maternity leave rights, relevant processes, and required documentation.
Facilitate SSS Filing: Ensure timely remittance of SSS contributions and assist in filing claims so employees can receive their benefits on time.
Avoid Discrimination: Do not terminate or refuse regularization solely because of an employee’s pregnancy or maternity leave.

9.2. For Employees

Early Notification: Notify your employer of your pregnancy as early as possible.
Keep Records: Maintain copies of your SSS forms, medical records, and communications with your employer regarding maternity leave.
Know Your Rights: Familiarize yourself with RA 11210 and company policies.
Meet the Performance Standards (Where Applicable): Continue to meet your employer’s legitimate probationary standards to avoid issues related to performance evaluations.

10. Conclusion

Maternity leave is a right accorded to all qualified female employees in the Philippines, regardless of their employment status. Probationary employees are explicitly included within the coverage of the Expanded Maternity Leave Law (R.A. 11210), provided they meet the eligibility requirements and follow due procedures for notification and filing.

Employers are prohibited from discriminating against pregnant employees, and termination solely on the basis of pregnancy or the taking of maternity leave is unlawful. While the probationary period may be extended to properly assess the employee’s performance after her return, such extensions should be grounded on legitimate performance criteria rather than used as a tool for discrimination.

Ultimately, protecting the maternity leave rights of probationary employees aligns with the constitutional mandate to uphold the welfare of working women and safeguard their maternal functions. Understanding these legal protections fosters a fair and compliant workplace, ensuring that employees receive the support they need during pregnancy and childbirth without fear of losing their jobs or benefits.