Below is a comprehensive discussion of Probationary Period Extension during Maternity Leave under Philippine labor laws. This article aims to guide both employers and employees on the legal framework, prevailing principles, and best practices concerning this sensitive and often misunderstood topic.

1. Overview of Probationary Employment in the Philippines

Under Article 296 (formerly Article 281) of the Labor Code of the Philippines, probationary employment generally cannot exceed six (6) months from the date the employee started working. Within this period, the employer is expected to determine whether a probationary employee meets the reasonable standards for regular employment, which must be made known to the employee at the time of engagement.

Key points on probationary employment:

Duration: By default, six (6) months from the start date, unless a shorter or slightly longer period is justified (e.g., by the nature of the job or by a bona fide training arrangement recognized by the Department of Labor and Employment (DOLE)).
Standards of Evaluation: The standards or criteria for regularization must be clearly communicated to the employee at the outset of employment.
Status Upon Expiration: If the employee continues to work after the end of the probationary period without any formal notice of termination or extension, the employee is deemed a regular employee by operation of law.

2. Maternity Leave under Philippine Law

In 2019, the Philippines passed Republic Act No. 11210, also known as the Expanded Maternity Leave Law (EMLL). The EMLL extends paid maternity leave benefits to female employees as follows:

105 days of paid maternity leave for live childbirth, regardless of mode of delivery.
An additional 15 days for solo parents, for a total of 120 days.
60 days of paid leave for miscarriage, emergency termination of pregnancy, or stillbirth.

The law covers all female employees in the private sector, including probationary, regular, and contractual employees, as long as they have paid the required Social Security System (SSS) contributions and comply with other SSS requirements.

Key Protective Principles

Non-Diminution of Benefits: Employers cannot reduce or deny existing maternity leave benefits (if they are greater than what the law provides).
Security of Tenure: Pregnant employees—whether probationary or regular—cannot be terminated on the sole ground of pregnancy or for exercising their right to maternity leave.
Non-Discrimination: Any employment action predicated on a female employee’s pregnancy or maternity leave can be legally challenged for discrimination.

3. Interaction Between Probationary Period and Maternity Leave

A common question arises when a probationary employee goes on maternity leave within the six-month probationary period. Employers often wonder whether they can (or should) extend the probationary period to properly evaluate the employee’s performance once she returns.

3.1 Legal Basis for Extension of Probation

The Labor Code itself does not expressly provide for “automatic” extensions due to absences during the probationary period. However, case law and DOLE opinions have recognized that there can be valid reasons for extending probation, particularly if the employer did not have a reasonable opportunity to assess the employee’s performance because of prolonged absences (e.g., long-term illness, extended leaves).

In general, for an extension to be considered valid:

It must be founded on a legitimate business reason—here, the inability to observe the employee for the full probationary duration due to an extended absence.
The employer should formally notify the employee in writing of the extension, stating the reason and the new end-date of the extended probationary period.
The extension period must be reasonable and proportionate to the duration of the employee’s absence (for example, if the employee was absent for two months of a six-month probation, the employer may argue for a two-month extension—provided the total extension is duly documented and agreed upon).

3.2 When Maternity Leave Occurs During Probation

While the law does not prohibit extending a probationary period due to maternity leave, it also does not categorically authorize it as a standard practice. Employers must tread carefully for the following reasons:

Non-Discrimination and Security of Tenure: If an employer extends probation simply because the employee became pregnant or took maternity leave—without linking it to the performance evaluation rationale—this could be deemed discriminatory.
Burden of Proof on the Employer: Should the employee contest the extension or subsequent non-regularization, the employer bears the burden of proving that the extension was necessary to evaluate performance and not a penalty for taking maternity leave.
Proper Documentation: It is crucial for employers to issue a clear, written communication that the extension is solely due to the lack of sufficient days of actual work to assess performance fairly.

4. Relevant Case Law and DOLE Guidelines

While there is no single Supreme Court decision squarely addressing the “probationary period extension due to maternity leave,” the Supreme Court has ruled in other contexts that:

An employer has the management prerogative to require a full six-month period (or a validly prescribed probationary period) of actual service to assess the employee’s fitness.
If an employee is absent for an extended period—and this prevents the employer from observing and evaluating the employee’s performance—the employer may validly adjust or extend the probationary period, provided due process is observed.

In various DOLE Opinions, the Department has likewise consistently held that:

Any extension of probationary employment must be supported by a just, reasonable cause.
The employee must be informed in writing of the extension and the specific reasons for such action to avoid claims of bad faith or discrimination.

5. Practical Considerations for Employers

Document the Probationary Objectives: Ensure that the key performance indicators (KPIs), job standards, or evaluation criteria were communicated from the start.
Record the Period of Absence: Carefully note the dates the employee was on maternity leave. If the leave significantly shortens the observation period, the employer should reflect this in their internal records.
Notify the Employee in Writing:
- State that due to her maternity leave, you have not had the opportunity to fully evaluate her performance.
- Indicate the specific extension period (e.g., the same number of days or weeks the employee was absent, or any other reasonable period aligned with your performance evaluation policy).
- Clarify that the extension is not a penalty, but a necessary measure to ensure a fair evaluation.
Apply Consistency: If the company has extended probation for other employees in similar situations (e.g., lengthy sick leaves, extended leaves of absence), it strengthens the position that the extension is policy-based rather than discriminatory.
Avoid Discriminatory Language or Action: Always frame the extension in terms of performance assessment and operational requirements, never pointing to pregnancy or maternity leave as a negative factor in itself.

6. Practical Considerations for Employees

Review Your Employment Contract: Check if it contains any stipulations about the treatment of extended absences during the probationary period.
Record All Communications: Keep copies of notices regarding your maternity leave and any documentation from your employer about probation.
Ask for Clarification: If your employer decides to extend your probationary period, request a written explanation and confirm that it is due to the inability to evaluate performance during your absence, not because of your pregnancy or maternity leave.
Seek Assistance If Necessary: If you believe the extension is discriminatory or you feel pressured into accepting unfair terms, you may consult with:
- The Department of Labor and Employment (DOLE),
- The National Labor Relations Commission (NLRC) if a labor dispute arises, or
- A legal counsel or union representative (if applicable) for guidance.

7. Risk of Legal Challenge and Liability

If an employer unilaterally and arbitrarily extends probation or terminates a probationary employee who just returned from maternity leave, there is a risk of:

Illegal Dismissal Complaint: If the real reason for termination (or refusal to regularize) is tied to the employee’s pregnancy or use of maternity leave.
Discrimination Lawsuit: Under the Women Workers’ rights provisions of the Labor Code, the Magna Carta of Women (RA 9710), and broader constitutional protections against discrimination.
Damages and Attorney’s Fees: If found liable, the employer may be ordered to pay backwages, separation pay (if reinstatement is not viable), and possibly moral or exemplary damages depending on the severity of the violation.

8. Summary of Key Points

Probationary Employment: Typically limited to 6 months, during which the employer must assess the employee based on pre-agreed standards.
Maternity Leave: Guaranteed by RA 11210 for female workers, providing 105 days paid leave (120 for solo parents) or 60 days in cases of miscarriage/stillbirth.
Extension of Probation: May be permissible if the employer can prove it did not have a reasonable opportunity to evaluate performance, but must not be used as a disguised penalty for taking maternity leave.
Documentation and Transparency: Vital to issue a written notice explaining the basis for any extension, ensuring the measure is for performance evaluation rather than discrimination.
Employee Remedies: If a probationary employee suspects unfair treatment or discrimination, she may file a complaint with DOLE or NLRC and seek legal counsel.

9. Conclusion

While Philippine law does not explicitly forbid extending a probationary period due to maternity leave, employers must use extreme caution. The legitimate ground for extension must revolve around the inability to evaluate the employee’s performance during her absence—not her pregnancy status. Proper documentation, transparent communication, and strict adherence to non-discriminatory practices are essential to ensure that a probationary period extension, if any, is legally defensible.

For employees, knowledge of one’s rights under the Expanded Maternity Leave Law and the Labor Code is the best safeguard against potential abuses. Should conflicts arise, seeking guidance from DOLE, the NLRC, or legal counsel is advisable to protect one’s rights to maternity benefits and security of tenure.