Dear Attorney,

I hope this message finds you well. I am a concerned employee from a local corporation, and I am writing to seek your legal advice regarding the computation and entitlement to 13th month pay during the period I was on maternity leave. Specifically, I would like to know whether the time I spent on maternity leave affects the overall computation of my 13th month pay, and if so, how this is properly computed under Philippine laws and regulations. I want to make sure I fully understand my rights and obligations, as well as my employer’s responsibilities in this matter. Any guidance you can provide would be greatly appreciated. Thank you very much, and I look forward to your expert opinion on this matter.

Respectfully yours,

A Concerned Employee

LEGAL ARTICLE ON 13TH MONTH PAY FOR EMPLOYEES ON MATERNITY LEAVE IN THE PHILIPPINES

As the best lawyer in the Philippines and a meticulous observer of labor laws, I shall now provide a comprehensive examination of how the 13th month pay is computed for employees who go on maternity leave. This article is written in accordance with Philippine labor statutes, regulations issued by the Department of Labor and Employment (DOLE), relevant jurisprudence, and other authoritative references. The goal is to offer a clear, detailed, and accurate legal discussion that addresses the concerns of employees, such as our letter sender, who have availed themselves of maternity leave within a given calendar year.

1. Definition and Nature of 13th Month Pay

Presidential Decree No. 851 is the governing law that mandates the payment of 13th month pay to all rank-and-file employees in the Philippines. Under this decree, all employers are generally obliged to pay each of their rank-and-file employees a 13th month pay, provided that the employee has worked for at least one month during the calendar year.

The 13th month pay is considered a mandatory benefit and not merely a bonus subject to employer discretion. Consequently, an employee’s right to receive a 13th month pay is legally protected under labor laws, and non-payment or improper computation can give rise to claims or complaints before the DOLE or the National Labor Relations Commission (NLRC).

Under PD 851 and its Implementing Rules, the following points are generally observed:

Coverage: All rank-and-file employees in the private sector who have worked for a minimum of one month during the calendar year are entitled to receive 13th month pay.
Payment Schedule: The 13th month pay must be paid on or before December 24 of every year. Employers may also choose to make partial or advanced payments of 13th month pay earlier in the year, so long as the full balance is settled on or before December 24.
Computation: The 13th month pay is computed at the rate of one-twelfth (1/12) of the employee’s “basic salary” earned within the calendar year.

2. Basic Principles of Maternity Leave in the Philippines

Republic Act No. 11210, also known as the 105-Day Expanded Maternity Leave Law, amended and expanded the maternity leave benefits for female workers in both the private and public sectors. Key points include:

Duration of Leave: Qualified female employees are entitled to 105 days of paid maternity leave for live childbirth, an additional 15 days for solo parents, and 60 days for miscarriages or emergency termination of pregnancy.
Payment: The maternity leave pay is primarily paid by the Social Security System (SSS) for private-sector employees, subject to certain conditions. Employers initially provide the maternity leave pay to their employees, then subsequently apply for reimbursement from the SSS if they meet the prescribed requirements.
Eligibility: In general, the employee must have made at least three monthly SSS contributions in the 12 months immediately preceding the semester of her childbirth or miscarriage. Employers and employees must coordinate to ensure all documentation is complete to facilitate the timely release of maternity benefits.

While maternity leave ensures that female employees can recover from childbirth without financial disadvantage, it may raise questions about how the period of leave interacts with other statutory labor benefits—specifically, the mandatory 13th month pay.

3. Interaction Between 13th Month Pay and Maternity Leave

A critical legal question arises whenever an employee is away from work for an extended period, such as during maternity leave: Is the time spent on maternity leave factored into the computation of 13th month pay? Although Philippine law does not always spell out each scenario in explicit detail, certain basic principles guide us:

Concept of “Actual Work” vs. “Deemed Paid”:
- In calculating the 13th month pay, the general formula is total basic salary earned during the calendar year divided by 12.
- Basic salary typically covers monetary remuneration or wages for work actually performed by the employee.
- Maternity leave benefits are generally paid through the SSS and are not considered part of the “basic salary” from the employer’s perspective. In many instances, DOLE clarifications note that SSS maternity benefits do not form part of the “basic pay” because they are reimbursements for the company-advanced portion of the SSS benefit or are paid directly by SSS.
- However, the period of maternity leave is still considered credited service time for the purpose of determining continuous employment and other benefits as provided under labor laws. The question is whether that credited service specifically influences the 13th month pay computation.
DOLE Guidance and Sample Computations:
- Employers are generally required to include in the 13th month pay all remunerations that are considered part of the “basic salary,” such as cost-of-living allowances (if integrated into the basic pay) or guaranteed wage adjustments.
- Benefits that are not integrally tied to basic pay (e.g., maternity leave benefits, overtime pay, holiday pay, or other special forms of compensation) are typically excluded from the computation.
- Therefore, if an employee was not receiving a regular salary from her employer during the maternity leave (because it was an SSS-paid benefit), those amounts do not figure into the total basic salary used to compute the 13th month pay.
Practical Outcome:
- If a female employee had regular monthly salaries for the months she actually worked, those salaries form part of the numerator (total basic salary for the year).
- For the months or days the employee was on maternity leave (and presumably receiving SSS benefits rather than employer’s salary), that portion is not counted as “basic salary from the employer.”
- This results in a slightly lower total amount of basic salary for the year, which, in turn, can reduce the 13th month pay proportionally.
- Nonetheless, the employee remains entitled to a pro-rata share of the 13th month pay. Even if an employee was on maternity leave for part of the year, she still must receive the 13th month pay reflecting her actual earned wages for the period she rendered service or received regular pay from the employer.

4. Legislative Basis and Supporting Jurisprudence

While there is no single Supreme Court ruling dedicated exclusively to the direct issue of including or excluding SSS-paid maternity leave in computing the 13th month pay, the established principle is that what is integrated into the 13th month pay computation is the amount of compensation that is paid by the employer as part of the basic salary. The rules from Presidential Decree No. 851, DOLE’s Implementing Guidelines, and consistent advisory opinions reinforce that statutory benefits like SSS maternity payment, which are not paid by the employer, do not count toward the “basic salary” total.

Thus, employees who receive SSS maternity benefits do not lose their right to the 13th month pay, but the actual countable amount for 13th month pay excludes the maternity benefit portion.

5. Common Misconceptions and Clarifications

Misconception: Employees sometimes believe that because they receive compensation from the SSS or from employer-advanced maternity benefits, these amounts automatically enlarge the total base for 13th month pay.
- Clarification: Only employer-paid wages that meet the definition of “basic salary” are included in the computation. Government-provided benefits (or reimbursements to the employer) do not form part of the direct wages from the employer.
Misconception: Employers can entirely deny 13th month pay to employees who took maternity leave.
- Clarification: This is incorrect because employees remain entitled to 13th month pay for the period they actually rendered service within the year. The right to 13th month pay arises so long as there is at least one month of actual service performed during the calendar year.
Misconception: Employees need to render a full 12 months of work to be entitled to 13th month pay.
- Clarification: Even employees who work for less than 12 months are entitled to a prorated 13th month pay based on the total basic salary earned within that partial service period.
Misconception: Maternity leave days are entirely excluded from tenure computations.
- Clarification: Maternity leave days are credited toward the employee’s length of service. However, for the specific purpose of 13th month pay calculation, the wages paid by SSS on those days are not considered “employer-paid basic salary.”

6. Detailed Computation Example

To further illustrate, let us create a simplified scenario:

Employee Profile: A rank-and-file employee who earns PHP 20,000.00 per month as basic salary.
Calendar Year Coverage: January 1 to December 31 of the same year.
Maternity Leave Period: The employee is on maternity leave for three months, during which time she receives SSS maternity benefits. The employer advances the maternity pay but gets reimbursed by SSS.

In a typical scenario, the computation for 13th month pay might look like this:

Total months actually receiving basic salary from employer: 9 months
Monthly salary: PHP 20,000.00
Total basic salary for the year (employer-paid): 9 months x PHP 20,000.00 = PHP 180,000.00
13th Month Pay: (Total basic salary for the year) / 12 = (PHP 180,000.00) / 12 = PHP 15,000.00

Thus, the employee would receive PHP 15,000.00 as her 13th month pay. The three months of SSS-paid maternity benefit are excluded because they are not considered part of the employer’s payroll expenditure for “basic salary.”

7. Employer Obligations

Employers must observe the following obligations concerning 13th month pay, especially for employees returning from maternity leave:

Provide Accurate Computations: Compute 13th month pay correctly, ensuring that the correct base salary is used.
Maintain Adequate Records: Keep payroll records, payslips, and documentary proof of amounts paid directly by the employer as basic salary, distinctly separate from SSS-paid maternity benefits.
Observe Payment Deadlines: The law requires that 13th month pay be paid not later than December 24. Penalties for late payment may be imposed by DOLE.
Ensure Transparency: Employers should be clear in explaining how the 13th month pay is calculated. Employees have the right to see how the amounts have been derived.
Avoid Unlawful Deductions: Employers are prohibited from making unauthorized deductions from the 13th month pay unless authorized by law or a valid written agreement (e.g., to cover government-mandated contributions or for legitimate salary advances).

8. Remedies for Non-Payment or Underpayment

If an employer fails to pay the 13th month pay correctly, or if there is a dispute concerning the proper amount due to time spent on maternity leave, the employee may:

File a Complaint with DOLE: The Department of Labor and Employment is tasked with enforcing labor laws and can mediate disputes, conduct inspections, and require employers to comply with wage and benefit laws.
Seek Assistance from NLRC: The National Labor Relations Commission hears cases involving labor disputes, such as unpaid wages or benefits, to determine liability and damages.
Consult a Private Lawyer: For more complex cases, an employee may consider hiring a lawyer to protect her interests, especially if substantial amounts of unpaid 13th month pay and other benefits are at stake.

9. Special Notes and Additional Considerations

Differences in Employer Policy: While the law provides a minimum standard for 13th month pay, some employers offer additional incentives or benefits, including “14th month pay” or other bonuses. The inclusion of maternity leave pay in such additional bonuses is entirely dependent on company policy, so long as it does not conflict with statutory mandates.
Expanded Maternity Leave Impact on Employment Status: The law clarifies that employees cannot be terminated on grounds of pregnancy or childbirth. Employees on maternity leave remain full-time employees and continue to accrue seniority and benefits as provided by law.
Clarifying Pay Slip Details: It is prudent for the employee to request detailed pay slips indicating the breakdown of computations. Maternity benefits from SSS are often shown distinctly, while employer-paid salaries and 13th month computations are presented separately. This level of documentation helps prevent misunderstandings or allegations of non-compliance.
Documenting Salary and Contributions: Because SSS coverage is crucial to the timely disbursement of maternity benefits, employees are encouraged to keep track of their monthly SSS contributions. Any lapse in contributions could negatively affect benefit eligibility and amounts.

10. Step-by-Step Guide for Employees

For those who find themselves in a similar situation, here is a concise guide:

Review Your Employment Records: Obtain a record of how many months or days you actually worked during the year.
Obtain Payroll Records: Secure copies of your payslips and the record of SSS maternity benefits.
Check Your Employer’s Calculation: Determine if your employer excluded the SSS maternity benefits from the total basic salary in computing your 13th month pay.
Verify Deadlines: Make sure your employer has paid or will pay your 13th month pay on or before December 24.
Engage in Dialogue: If you notice discrepancies or have questions, talk to your HR department or payroll officer to clarify.
File a Complaint if Necessary: If no resolution is reached, consider filing a complaint with DOLE or seeking further legal counsel.

11. Frequently Asked Questions (FAQs)

Q: Do I still get 13th month pay if I took the full 105 days of maternity leave this year?
A: Yes, you do. Your 13th month pay is computed based on the basic salary paid by your employer for the months you actually worked. The time you spent on leave does not disqualify you from receiving 13th month pay; however, SSS-paid maternity benefits will not be included in the base for computing your 13th month pay.
Q: I gave birth towards the end of the year and was mostly on leave. Do I get only a partial 13th month pay?
A: Most likely yes. The law states that you earn a prorated 13th month pay based on your total basic salary earned for the year. If you spent only a few months working during the year, then your 13th month pay would be prorated accordingly.
Q: My employer says that because I was out for so long on maternity leave, I am not entitled to 13th month pay. Is this correct?
A: That is not correct. The law mandates that any employee who has worked at least one month during the calendar year is eligible for 13th month pay. While the maternity leave might reduce the total basic salary used in the computation, it does not negate your fundamental right to receive the 13th month pay for the months worked.
Q: Can my employer include my maternity benefits when calculating my 13th month pay if they want to?
A: In general, statutory maternity benefits from SSS are not considered employer-paid wages and therefore are not included. An employer may choose, out of goodwill, to provide additional benefits, but that would be above the standard mandated by law.
Q: Are there any sanctions against employers who fail to comply?
A: Yes. Employers who do not follow the law on 13th month pay or unlawfully withhold or fail to pay it on time may face administrative fines, potential labor cases, and orders for restitution.

12. Conclusion and Recommendations

An employee’s maternity leave in the Philippines is a protective measure designed to uphold the health and welfare of both mother and child. This special leave ensures that female employees retain their employment status, seniority, and benefits while recovering from childbirth. However, when it comes to computing mandatory benefits such as the 13th month pay, it is essential to distinguish between “basic salary” paid by the employer versus statutory maternity benefits paid by the SSS.

Although maternity leave periods do not disqualify an employee from receiving a 13th month pay, the portion of compensation received from SSS during maternity leave is generally excluded from the calculation because it does not come from employer-paid wages. Consequently, an employee may see a reduction in total “basic salary” for the year, but remains entitled to a prorated 13th month pay.

Key Takeaways:

13th Month Pay Is Mandatory: Under PD 851, employers must provide 13th month pay to all rank-and-file employees who have worked at least one month in a calendar year.
Maternity Benefits vs. Basic Salary: Maternity benefits paid by the SSS are not added to the total basic salary for 13th month pay computation. Only employer-paid salaries form part of the base.
Prorated Computation: For employees who do not work the full 12 months (including those on maternity leave), 13th month pay is proportionate to the actual basic salary earned from the employer.
Legal Remedies: Employees who face issues concerning non-payment or underpayment of 13th month pay can seek recourse through DOLE, the NLRC, or private counsel.
Staying Informed: Both employees and employers should remain aware of updates in labor regulations, DOLE advisories, and Supreme Court rulings that may further clarify or refine the rules concerning the computation of 13th month pay.

Practical Advice: If you are an employee about to go on maternity leave, coordinate closely with your employer’s HR or payroll department. Understand how your compensation is recorded, request payslips or payroll statements that outline the portion considered as employer-paid wages versus SSS maternity benefits, and verify the subsequent 13th month pay computation. It is better to clarify these matters beforehand to avoid misunderstanding or disputes later on.

For employers, adopting transparent policies and procedures on computing 13th month pay—especially for employees on extended leaves, whether it be maternity leave, sick leave, or other forms of leave—minimizes the risk of labor disputes and demonstrates good faith compliance with labor laws. Employers are encouraged to provide employees with written breakdowns detailing how the 13th month pay was derived, which fosters a culture of trust and respect in the workplace.

In sum, the provisions of Philippine labor law—particularly PD 851 and RA 11210—are structured to safeguard the interests of female employees who take maternity leave while also ensuring that employers have clear guidelines for compliance. By understanding these laws and fulfilling their respective obligations, both employees and employers can maintain a harmonious and equitable working relationship.

(End of 1998-token response)