23 November 2021
Questions Regarding Maternity Leave
In Labor Law numbered 4857, there are detailed statements with regards to maternity leave.
Within this framework, you can find the details about maternity leave as below:
In which article in Labor Law numbered 4857, the maternity leave is regulated?
Maternity leave is regulated in Article 74 of the Labor Law as below:
"Article 74 - It is essential that female workers should not be employed for a period of sixteen weeks in total, eight weeks before and eight weeks after birth. In case of multiple pregnancies, a period of two weeks is added to the eight weeks. However, if the health condition is suitable, the woman If the worker wishes, she can work in the workplace for up to three weeks before the birth. One of the spouses who adopt a child under the age of three or the one who adopts a child under the age of three is given maternity leave for eight weeks from the date the child is actually given to the family.
From the end of postpartum maternity leave, for the care and upbringing of the child and provided that the child is alive, female or male workers who adopt a child below the age of three, upon request, for sixty days at the first birth, one hundred and twenty days at the second birth, and one hundred and eighty days for the next births. Unpaid leave can be given equally to half of the weekly working time. In case of multiple births, thirty days are added to these periods. If the child is born disabled, this period is three hundred and sixty days. During the period benefited from the provisions of this paragraph, the provisions regarding breastfeeding leave are not applied.
The periods stipulated above can be increased if necessary before and after birth, depending on the employee's health status and the nature of the job. These periods are specified in the doctor's report.
During pregnancy, female employees are given paid leave for periodic controls.
If deemed necessary by the doctor's report, the pregnant female employee is employed in lighter jobs suitable for her health. A salary reduction is not made in the employee's payment.
Up to six months of unpaid leave is given to a female employee upon her request after completing the sixteen-week period or after eighteen weeks in case of multiple pregnancies. This permission is given to one of the spouses or to the adopter in case of adopting a child under the age of three. This period shall not be taken into account in calculating the entitlement to paid annual leave.
A total of 1.5 hours of Breastfeeding leave per day is given to female employees to breastfeed their children under one year old. The employee determines by herself between what hours and how many times this period will be used. This period is counted from the daily working time.
The provisions of this article are applied to all kinds of employees who work with an employment contract and are or are not covered by this Law."
What is the duration of the maternity leave period?
According to Turkish Labor Law, women are granted a total of 16 weeks of maternity leave (8 weeks before and after birth.) It is expected that delivery actualizes on the 40th week of the pregnancy. In multiple pregnancy cases, the pre-birth leave period is set as 10 weeks. The leave period can start on the 32nd week of pregnancy.
Alternatively, pregnant employees can take a report allowing them to work from the 32nd week of the pregnancy until the 37th week. Depending on this report, 5 weeks (between 32nd -37th week) will be added to their 8-week post-delivery period. In this case,the split would be 3 weeks before birth and 13 weeks after.
In case of premature birth, can the employee use the maternity leave days that were not used before the birth?
Per Article 74 of Labor Law, in case of premature birth, unused maternity leave days before the birth can be used after the birth.
On the annual leave entitlement calculation, can we take the maternity leave period into account?
According to Article 55 of Labor Law; "Days on which the female employee is not permitted to work before and after her confinement, under Article 74 would be considered as working day for the annual leave entitlement calculation."
Accordingly, the 8 weeks periods before and after the birth would be taken into account on annual leave entitlement.
Can the employees request unpaid leave after the maternity leave period?
Article 74 of Labor Law; Up to six months unpaid leave is given to a female employee upon her request after completing the sixteen-week period or after eighteen weeks in case of multiple pregnancies.
It is worth mentioning that the 6-month period would start after the maternity leave, and once the period ends, the employee cannot request unpaid leave.
Can the employees request half-time work after the maternity leave period?
Per Article 74 of Labor Law; "From the end of postpartum maternity leave, for the care and upbringing of the child and provided that the child is alive, female or male workers who adopt a child below the age of three, upon request, for sixty days at the first birth, one hundred and twenty days at the second birth, and one hundred and eighty days for the next births. unpaid leave can be given equally to half of the weekly working time. In case of multiple births, thirty days are added to these periods. If the child is born disabled, this period is three hundred and sixty days. During the period benefited from the provisions of this paragraph, the provisions regarding breastfeeding leave are not applied."
Can the employees request part-time work after the maternity leave period?
Per Article 13 of Labor Law, part-time work can be done after maternity leave. The provision of the relevant article is as follows:
Per that article, one of the parents can request part-time work until the beginning of the month following the start of the compulsory primary education. This request should be accepted by the employer, and this would not be a valid termination reason. The employee working part-time under the scope of this article may return to work and cannot benefit from that right for the same child. If the employee returns to full-time work, the employee's contract who is replaced would be automatically terminated. The employee would need to notify the employer in writing to benefit from that right or return to full-time work. If one of the parents does not work, the working parent cannot apply for part-time work.The employees who adopt a child who has not completed the age of three can benefit from that right as of the actual delivery date.
What is the duration of the breastfeeding leave?
Per Article 74 of Labor Law; A total of 1.5 hours of breastfeeding leave per day is given to female employees to breastfeed their children under one year old. The employee determines herself between what hours and how many times this period will be used. This period is counted from the daily working time.
Can breastfeeding leave be used in bulk?
Article 74, the breastfeeding leaves can be used daily, and it is not possible to use them in bulk.
Can maternity leave be used in case of a dead birth?
There is no statement in Labor Law numbered 4857. However, Article 6 of the Public Servant Communiqué dated 16.04.2016 and numbered 29683 states that the public servant who has a dead birth can have the maternity leave period like the regular maternities.
From the point of the principle of interpretation in favor of the employees, this statement can also be applicable for the employees under Labor Law numbered 4857.
How can the leave types be listed for maternity?
- Maternity leave; total 16 weeks (18 weeks for multiple births)
- Unpaid leave; 6 months period after the maternity leave.
- Half-time work after maternity leave; for sixty days at the first birth, one hundred and twenty days at the second birth, and one hundred and eighty days for the next births.
- Part-time work after maternity leave.
- Breastfeeding leave; 1.5 hours per day.
Which steps should be followed up during maternity leave?
The steps which should be followed are as indicated below:
- The employee must undergo an examination when her pregnancy is in the 32nd week. This examination should be at a hospital affiliated with the Social Security Institution ("SSI") or a private hospital contracted with the SSI. Based on the result of this examination, her report can begin at her 32nd week, in which case an Incapacity Report (İş Göremezlik Belgesi) is given, or on the other hand, she takes a report which is the show her capability of work until her 37th week as mentioned above.
- If the employee receives a capable to work report, she must consult a doctor on her 37th week and obtain the Incapacity Report.
- The hospital or doctor inputs the report to the online SSI system, and an email notification is sent to the employer asking them to approve the online report.
- Within one week after delivery, the report must be closed by the doctor. The employee should track the report's status to ensure that the delivery date is correct because it will determine when the leave period will end.
For the report to be paid by the SSI, as mentioned above, the medical report must be issued from public or private hospitals that are affiliated with the Social Security Institute, and they must be notified by the hospital through the SSI's online system. After the hospital enters the medical report through the online SSI system, The SSI informs the employer and asks for their approval of the report.
What are the conditions for the temporary incapacity allowance/maternity leave payment from Social Security Institution?
The temporary incapacity allowance to be granted by the SSI during the maternity leave is regulated by the below statements in Article 18/c of Law No. 5510;
"c) In case of maternity of headmen stated in item (a) and (b) of paragraph one of Article 4 and female insurance holders under numbers (1), (2) and (4) of the same item, each day of not working including eight - week periods before and after birth and, in cases of multi birth, adding another two weeks to the said eight weeks before the birth, provided that minimum ninety days short term insurance premium is notified within one year before the birth."
What is the amount of the temporary incapacity allowance/maternity leave payment during the maternity leave period?
The amount of the temporary incapacity payment is regulated under Article 18 of Law No. 5510 as below:
"The temporary incapacity benefit payable in cases of a work accident, occupational disease, sickness, and maternity of female insurance holders, shall be half of the daily earnings to be calculated as per Article 17 in inpatient treatments and two-thirds of the same in outpatient treatments."
The SSI's payment calculation is variable, but it is approximately; two-thirds (2/3) of the employee's daily gross salary. If her salary is over the ceiling amount announced by the SSI, the daily ceiling amount should be considered, multiplied by report duration.
Per Article 82 of Law No. 5510, the ceiling amount for temporary incapacity allowance is 7.5 times the minimum wage. The relevant statement is as below:
"ARTICLE 82 - The lower limit of the daily earning subject to premium in the calculation of premiums to be collected and benefits to be granted by is one-thirtieth of the minimum wage and the upper limit is 7.5 times the lower limit of daily earning. Earnings of insurance holders with a daily earning under the lower limit in the above paragraph and of insurance holders working free - of - charge shall be calculated using the lower limit, and the individuals with a daily earning over the upper limit shall be calculated using the upper limit."
You can find below an example for the temporary incapacity payment for the maternity period:
For example, if an employee's monthly gross salary is 3.000,00 TRY and her report duration is 112 days;
3.000,00/30=100 TRY (daily gross salary)
100*2/3= 66,67 TRY (temporary incapacity allowance)
66,67*112=7.467,04 TRY (total maternity benefit)
Can the employer pay salary while the employee is on maternity leave?
The employer does not have to pay salary while the employee is on maternity leave. However, they can prefer to pay if they want or pay the difference between maternity leave allowance and the employee's salary.
In this case, all relevant social security premiums must be paid under Article 80 of Law Numbered 5510. The article provision is as follows:
"d) Wages shall be subject to premium by attributing to the month they are deserved. Other payments shall be included in the earning of the month they are paid and the section not subject to the premium due to exceeding the upper limit in the month such payments are made out of wage shall be added to the earnings subject to the premium of the subsequent months under the upper limit, not to be later than two months following the month of payment. Based on resolutions reached by employers of workplaces subject to collective labor agreement or by public administrations or legal authorities, where the payments paid later on other than wage are paid when a service contract is not present or suspended, considering the provision of Article 82, this shall be included in the earning of the final month to which earnings subject to premium. In such cases, where the insurance premiums are paid until the end of the month following the finalization date of the resolution of the abovementioned authorities, default fine or default increment shall not be collected, and provisions of Article 102 shall not be applied."
Also, if the employers choose to pay the full salary during the maternity leave period, they may request temporary incapacity payments from the employee later.
Can an employer pay a benefit amount as support while the employee is on maternity leave?
Employers can make various payments to employees during maternity leave as support.
According to the statements of the Social Security Employer Circular numbered 2020/20, the social security premiums should be paid within the two months following the month of payment.
The relevant provision is as follows:
"In the event that payment other than salary is made to the insured for various reasons (such as unpaid leave, rest) during the months when there is no work and salaries are not paid, these payments will be included in the earnings subject to premium for the relevant months (not exceeding the following two months). However, in cases where salary payment is not entitled in the two months following the date of payment, these additional benefit payments will not be included in the earnings subject to the premium."
You can reach Labor Law No. 4857 via the link (In Turkish.)
Should you have any queries or need further details, please contact your customer representative.
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