Following its publication in the Official Gazette on 16 December 2022, the Leave (Paternity, Parental, Carer, Force Majeure) and Flexible Working Arrangements for Work-Life balance Law of 2022 (Law no. 216(I)/2022) (the "Law") has come into effect.
The purpose of the law is to align Cyprus Law with EU Directive 2019/1158 on work-life balance for parents and carers (the "Directive"). This Directive builds on the rules which were laid down in Directive 2010/18/EU, repealing the same, and complements them by strengthening existing rights and introducing new rights. Similarly, the new Law repeals and replaces the Paternity Protection Law of 2017, as amended, and the Parental Leave and Force Majeure Leave Law of 2012. Necessary amendments have also been made to associated legislation, including, among others, the Social Insurances Law, with a view to ensuring the smooth introduction and operation of the Law.
The Directive, and hence the Law, lays down the minimum requirements designed and intended for achieving equality between men and women with regard to labour market opportunities and treatment at work. By facilitating the reconciliation of work and family life for workers who are parents and/or carers the Directive additionally targets the promotion of a high level of employment in the European Union. The main areas affected by the transposition of the Directive into national law concern (i) paternity leave, (ii) parental leave, (iii) carers' leave, (iv) leave in cases of force majeure, and (v) flexible working arrangements for working parents and/or carers.
The key changes introduced by the Law are summarised below:
The right to paternity leave was first introduced in the Republic of Cyprus by virtue the Protection of Paternity Law of 2017 (No. 117(I)/2017) in attempt to strengthen the existing social legal framework for the protection of parenthood at work, entitling working husband, whose wife gave birth or had a child through a surrogate mother, or adopted a child under the age of 12, may apply for two consecutive weeks paid paternity leave between the week of the birth or adoption and up to two weeks from the expiration of maternity leave.
Pursuant to the enactment of the Law and hence, the repeal of the Protection of Paternity Law of 2017, the restrictive qualification that a father was required to be married to, or in a civil relationship with, the mother has since been removed and the marital status of the father is now irrelevant. Accordingly, all fathers continue to have the right to two consecutive weeks paid paternity leave to be taken leave between the week of the birth or adoption and up to two weeks from the expiration of maternity leave, provided they furnish their employer with at least two weeks written notice or, in the case of an unexpected birth, as soon as possible but no later than following the birth event. The obligation on the employer to grant such leave is absolute and not linked to length of employment or seniority factors.
Additionally, the Law has introduced a new provision whereby in the event of the death of the mother prior to, or during, the birth of the child or during maternity leave, the right to paternity leave, and by extension the right to paternity allowance, increases by so many weeks equal to any unused/remaining maternity leave and maternity allowance that the mother may have been entitled to if she had not passed away.
Lastly, the Law humanely allows for a father to continue to be entitled to paternity leave in the case where a childbirth results in the birth of a dead child.
Prior to the repeal of the Parental Leave and Force Majeure Leave Law of 2012 (No. 47(I)/2012), all working parents with a child up to 8 years old (or 12 years old in the event of adoption; or 18 years old in the event of a disabled child) were individually entitled to up to 18 weeks (or 23 weeks for a widowed parent) of unpaid parental leave for each child, with a maximum restriction of 5 weeks per annum in the event of 1-2 children or 7 weeks per annuum in the event of 3 or more children, provided that they had been employed by the same employer for at least 6 months.
While most rights and restrictions 1continue to apply, a significant change introduced by the Law now entitles those taking parental leave to receive parental leave allowance from the Social Insurance Department for 8 of those weeks (which may increase by 4 or 6 weeks accordingly in cases of disability) provided that upon the request for parental leave allowance the parent has completed 12 months employment in the last 24 months. Additionally, the Law has extended the right of increased parental leave that applies for widows (i.e. 23 weeks) to also apply to single parents in cases of loss of custody or non-recognition of a child by the other parent.
Further, the Law clarifies that although this right is personal to each parent and non-transferable, it may be possible to transfer up to 9 (unpaid) weeks of the remaining parental leave of one parent to the remainder of the other.
Parental leave may generally be taken in parts with a maximum restriction of 5 weeks per annum irrespective of the number of children but may alternatively be taken in a flexible fashion provided that this is agreed with the employer. Parental leave may be requested by an employee by giving at least 3 weeks' notice in advance of their intention to take parental leave and its duration or, in exceptional cases where there is an emergency, a sooner notice period provided this is agreed to by the employer.
Accordingly, an employer reserves the right, pursuant to a discussion with the employee concerned, to suspend the date on which parental leave has been granted if it is deemed to negatively affect the smooth operation of the business. Nevertheless, an employer must first offer the employee the option to take parental leave in a more flexible manner which suits the interests of both parties. In this respect, the Law clarifies that such suspension may not continue for a period greater than 2 months from the date the parental leave was requested.
Moreover, an employer retains the right to reject a request for parental leave, provided the intention of the employer is first communicated to the employee in writing and allows the employee the opportunity to respond on the matter within 1 week. Having considered the arguments of the employee, the employer must inform the employee of its decision the latest 2 weeks prior to the date on which the parental leave was requested to commence, providing reasons as to the rejection of the request.
Lastly, employers have an obligation to keep employees who are absent on parental leave duly notified of any promotion procedures and opportunities for filling vacant positions and allow equal opportunities for participating in such procedures and/or opportunities.
The Law introduces the concept of unpaid leave for individuals who provide personal care and support to relatives (parent, child, spouse or civil partner) or household members requiring significant care or support due to important medical reasons. Such leave is restricted to a maximum of 5 days per year and need not be taken consecutively but is dependent upon the presentation of a supporting medical certificate to the employer, whom must be promptly notified.
Force Majeure leave
Similar to the former legislation, the Law entitles an employee to take up to 7 days of unpaid leave per annum, which again need not be taken consecutively, for reasons of 'force majeure' related to emergency family reasons concerning illness or an accident serious enough to necessitate the immediate care of a person by the employee. One of the major developments brought about by the Law is that leave for reasons of force majeure need no longer be exercised in relation only to family dependants.
Flexible working arrangements for parents and/or carers
Subject to having completed a minimum of six months continuous employment with the same employer, any parent with a child up to the age of 8 and/or all carers, have the right to request flexible working arrangements to assist them with their domestic responsibilities. Importantly, the employer is not obliged to accede to the request but may approve, postpone or reject it, however the decision must be taken and communicated in writing to the employee within one month of the original request for flexible working arrangements.
Accordingly, the representations of the employee must be considered in each case, and, where the decision is to postpone or reject the request, the employer must also provide a written justification for the decision taken. Conversely, where the request is approved, considering the needs of the employer as well as those of the employee, the period when the flexible arrangements are to apply may be subject to reasonable limitation.
In any case, the employee has the right to return to their 'normal' work pattern at the end of (or prior to the expiration of) the agreed period.
It is noteworthy that, any paternity leave, parental leave, carer's leave or leave due to reasons of force majeure is considered as a separate and additional benefit to each employee, not to be construed as constituting part of their annual leave, and is taken into account as period worked for the purposes of applying the provisions of the Termination of Employment Law of 1967 (Law 24/1967), as amended. During any leave of absence from work as a result of any of the aforementioned, employees continue to enjoy their full employment rights and any such absence should not negatively affect their seniority, rights to promotion, returning to work in positions equivalent to the level of their remuneration and benefits or any improvements in working conditions from which they would have benefitted if they had not been on leave (except for supplies which are calculated exclusively on the quantity and/or value of the services provided).
Finally, it is important for employers to acknowledge that are prohibited from terminating or providing notice of termination to an employee during the period beginning on the date which the employee has submitted a written request to exercise any of the aforementioned rights, including also the right to flexible working, and the date on which such rights expire. Exceptional circumstances exist where termination of an employee during such period may be permitted in accordance with the provisions of the Law and the Termination of Employment Law of 1967 (Law 24/1967), as amended, however individuals should first consult their legal advisors on such matters. It is clarified that an employer whom is in breach of any of the provisions of the Law shall be found guilty of an offence and may, on conviction, be liable to a fine not exceeding the amount of €7,500.
The EU deadline for transposing the majority of the Directive was 2 August 2022 (except for the payment of the last 2 weeks of paid parental leave, for which the deadline is 2 August 2024). However, Cyprus is far from alone in being late to comply; it was one of 19 Member States to receive letters of formal notice in September regarding the omission and several of them have yet to complete the transposition. Nor should Cyprus be regarded as reluctant to apply the Directive or support the principles underlying it. The Law was under extensive discussion throughout 2022 with most criticism suggesting that it was in fact too narrow in scope. Specific concerns raised included the exclusion of a benefit for the self-employed and queries as to whether payment of parental leave from Social Insurances was set at a sufficiently high level.
1. The restriction of 7 weeks per annuum in the event of 3 or more children is no longer provided for under the new law.1
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.