Paternity leave: how many days is it? How does it work? Who is eligible?

Paternity leave is a legally guaranteed right. Companies are required to provide five consecutive days of leave to employees. Is it possible to extend the leave? What situations qualify? How do I request it?

What is paternity leave?

It is paid leave granted by the employer to the employee after he or she becomes a father. It is a right guaranteed by law.

How many days is paternity leave?

The Federal Constitution provides for a five-day leave, a period that begins on the first business day after the birth of the child. However, if the company is registered with the Empresa Cidadã program, the period is extended to 20 days (five days, extendable for an additional 15 days).

Leave longer than the legal period is still possible, and can be granted by the employer through negotiation in a collective agreement or bargaining agreement. Therefore, nothing prevents the company from negotiating better terms for this benefit, through internal policies or collective bargaining.

However, paternity leave cannot be reduced or eliminated. Negotiation is only permitted to increase the length of this leave.

Can fathers take 120 days of leave?

According to Article 71-A of Law 8,213/1991, a 120-day leave is granted to male insured individuals who obtain sole custody of a child for adoption purposes.

Who is eligible?

This right is guaranteed by the CLT (Consolidation of Labor Laws) to urban and rural workers with formal employment contracts, in the case of the private sector. Public servants are also eligible, but with specific rules.

Because they are considered self-employed and not under the CLT (Consolidation of Labor Laws), a professional who works as a legal entity (PJ) does not have the same legally guaranteed right.

How to apply?

The employee must apply for the benefit directly to the company where they work. The documents to be submitted depend on the process:

• Deed of Custody and Responsibility, granted in the case of an adoption process;

• Deed of Adoption, issued by the competent authority;

• Birth certificate of the child, listing the name of the requesting employee as the father.

What situations entitle you to paternity leave?

All fathers of newborns can exercise their paternity rights after the birth of their child, thus justifying their absence from work. This also applies to cases of adoption or obtaining legal custody for the purpose of adopting a child.

There is no express provision guaranteeing paternity leave to adoptive fathers governed by the Consolidation of Labor Laws (CLT), the Federal Constitution, or other laws.

However, the Federal Constitution itself guarantees that there is no distinction between fathers and adopted children, which would imply that adoptive fathers would be guaranteed the same rights as biological fathers.

Why is it advantageous for the company to grant extended leave?

Participation in the program that extends maternity leave is an exclusive prerogative of private companies, which, by doing so, enjoy certain tax benefits.

One of these benefits is the ability to deduct the full amounts paid to employees during their leave from their income tax. This deduction must be reported when filing your income tax return.

However, only companies taxed on actual profits and with no debts to the government can benefit from this tax benefit.

When does it start?

The law does not clearly state how the period is calculated. For interpretation purposes, it is counted in calendar days, always starting on a business day, in the first week of the birth or adoption.

For example, if a child is born on a Thursday, the five-day leave begins the following day (Friday) and ends on Tuesday (five calendar days).

Is paternity leave different for public servants?

For public servants, the system for granting paternity leave depends on the law or statute regulating their relationship with the Public Administration (federal, state, municipal, public companies, mixed-capital companies, etc.). Regardless of the system, a minimum of five days of paternity leave is guaranteed.

Law 8,212/1999 and Decree 8,737/2016, for example, guarantee civil servants of the Union, autonomous agencies and federal public foundations the right to paternity leave of five consecutive days, which can be extended for a further 15 days for biological or adopted children — in the latter case, the leave is granted in cases where the adopted child is no older than 12 years old.

Source: UOL