Maternity wages in pandemic times
April 28, 2021Dr. Marta Gueller published on her blog “O Seguro Morreu de Velho”, from the newspaper “O Estado de São Paulo”, a study on maternity wages in these times when we are going through the COVID-19 pandemic.
To read directly on the blog, go to Already on the air: https://economia.estadao.com.br/blogs/o-seguro-morreu-de-velho/salario-maternidade-em-tempo-de-pandemia/
The full text follows:
MATERNITY WAGE IN PANDEMIC TIME
The Federal Constitution of 1988 establishes, in article 5, caput, that all are equal before the law. And, in item I, it provides that men and women are equal in rights and obligations.
The Constitution promotes discrimination in favor of women, establishing pregnant leave for women, which lasts longer than paternity leave; prohibiting the arbitrary or unfair dismissal of the pregnant woman, from the confirmation of the pregnancy to five months after delivery; encouraging the work of women, through protective norms and also establishing different rules for obtaining retirement.
The Ministry of Health recommends women of childbearing age to postpone pregnancy, as the WHO recognizes that pregnancy puts women at greater risk for severe Covid. For pregnant women, the recommendation is to take them away from work in an attempt to reduce the risks of contamination and complications resulting from it.
The National Congress recently approved a bill (PL 3.932 / 2020) that guarantees the pregnant employee the absence from face-to-face work during the period of the pandemic, without prejudice to the receipt of the salary. The Bill was unanimously approved in a symbolic vote. According to the project, the pregnant employee must remain at the employer’s disposal in remote work. The project continues for presidential sanction (https://www25.senado.leg.br/web/ividade/materias/-/materia/144401).
But the debate over the protection of pregnant women in times of pandemic is more complex. Not all work can be done remotely. Is there another legal alternative to protect pregnant women in the face of the Covid 19 pandemic? We think so. The pregnant woman must be protected from the moment of conception through the maternity wage, a kind of social security benefit.
In a study published in the book “The social protection of women” (https://www.jurua.com.br/), Federal Judge of Labor Ivani Contini Bramante addresses the theme “Protection of Pregnant Women and Pandemic” bringing the study to the discussion on the feasibility of maternity leave “environmental risk”, whose period goes from conception to delivery, that is, nine months, plus the breastfeeding period of six months, totaling fifteen months (art. 394-A, CLT w / c art. 396 and single §, CLT).
Still with regard to maternity protection, the STF recently ruled on a precautionary measure in a right of unconstitutionality by default, ADI 6327 MC-REF-ED / DF, in order to guarantee protection for premature children (and their mothers), recognizing the omission relative unconstitutionality in the contested provisions, since the children or their mothers who are hospitalized after childbirth are unequally deprived of the period destined for their coexistence, establishing the need to extend the benefit, as well as consider it as the initial term of maternity leave and maternity leave. respective maternity salary the hospital discharge of the newborn and / or his mother, whichever is the last, when the hospitalization period exceeds the two weeks provided for in art. 392, §2º, of the CLT, and in art. 93, §3, of Decree No. 3,048 / 99.
The question about the extension of leave in cases of premature birth, by the way, is being debated in the legislative scope through PEC n. 181/2015. For the moment, there is a legislative omission regarding the protection of mothers and children hospitalized after childbirth, which does not meet a rational and constitutional discriminatory criterion. This omission was legally confirmed by the STF in the aforementioned decision (http://portal.stf.jus.br/processos/downloadPeca.asp?id=15344718756&ext=.pdf).