Paternity Leave for Probationary Employees

I haven’t blogged on law for a long time. I’ve been planning to but I just couldn’t get around to doing so. But every now and then a client would ask me an interesting question and it occurred to me that maybe I could hit two birds with one stone: Do research on that question and convert it to a blogpost!

So here’s the question: Can probationary employees avail of paternity leave?

But first, What is paternity leave? Here’s the definition according to Section 3 of Republic Act 8187 (Paternity Leave Act of 1996):

SECTION 3. Definition of Term. – For purposes of this Act,  Paternity Leave refers to the benefits granted to a married  male employee allowing him not to report for work for seven (7) days but continues to earn the compensation therefor, on the  condition that his spouse has delivered a child or suffered a  miscarriage for purposes of enabling him to effectively lend support to his wife in her period of recovery and/or in the  nursing of the newly-born child.

And who may avail of this Paternity Leave? Section 2 of the law gives the answer:

SECTION 2. Notwithstanding any law, rules and regulations to the contrary, every married male employee in the  private and public sectors shall be entitled to a paternity leave  of seven (7) days with full pay for the first four (4) deliveries of  the legitimate spouse with whom he is cohabiting. The male  employee applying for paternity leave shall notify his employer of the pregnancy of his legitimate spouse and the   expected date of such delivery.

For purposes of this Act, delivery shall include childbirth  or any miscarriage.

The law mentions “every married male employee in the private and public sectors”. But does he have to be a regular employee before he can avail of paternity leave? Section 1(b) of the Implementing Rules clarifies the meaning of employee in this provision:

“Employee” refers to any person who performs services for another and receives compensation therefor, provided an employer-employee relationship exists between them.

We are now in a position to answer our original question: Can a probationary employee avail of paternity leave? Yes, because the paternity leave law (as clarified by the Implementing Rules) doesn’t distinguish between regular and probationary employees. Of course, he still has to comply with the conditions provided in the law, but probationary employment status by itself doesn’t disqualify him from availing of paternity leave.

Incidentally, there’s a new law that came out early in 2019 that expanded maternity leave. This new law allows a female worker entitled to maternity leave benefits to allocate up to seven (7) days of said benefits to the child’s father, whether or not the same is married to the female worker. But that’s going to be a blog post for another day.


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