In Ecuador, the Law provides several benefits to workers for paternity leaves, and the employers must acknowledge such benefits, which are mainly the ones provided below:
1. Paid leave of absence to the working father after the birth of his child
The employer must grant to the working father a paid leave of absence of ten days for the birth of his child, when it is a natural birth; and in multiple births or C-section, the leave is extended for five additional days.
If the child is premature or needs special care, the leave is extended for eight more days. If the child is born with a degenerative, terminal or irreversible disease, or with a degree of severe disability, the employer shall grant a paid leave of absence of up to 25 days.
If the mother passes away during childbirth or while she is on her maternity leave, the father may use all or the remaining part of the leave of absence of the mother, had she not passed away.
When making these provisions, the legislators did not provide the specifics on how to approach some consequent aspects of the aforementioned situations, such as:
- There is no exact date on which the worker shall start the leave. The understanding is that he shall start it on the date of birth of his child, but the law does not specify what would happen if, for work reasons, the employer is not able to grant such leave of absence during that period.
- The legal provision does not clarify what would happen if the child passes away during the leave, or if the child is born during the annual vacation period of the father.
- The employer must pay the worker the full remuneration during this license period. There is no specification regarding a subsidy from the Instituto Ecuatoriano de Seguridad Social (Social Security) during this period, such as the case of the maternity leave.
- There is no express rule forcing the employer to pay additional compensations to the worker in case of untimely dismissal during his paternity leave.
2. Paid leave of absence for adoption
Employers must grant adoptive parents a paid leave of absence of 15 days starting on the date in which the child was legally handed over to the parents.
During this leave, the employer shall pay full remuneration. There is no provision granting additional rights to the employee exercising this right.
3. Unpaid paternity leave of absence
Once the paid paternity leave ends, the employees have the right to an optional unpaid leave of up to nine additional months, to take care for his child during the first twelve months of life of the minor. Adoptive parents also have the right to this leave.
The period in which employees may make use of this leave is calculated according to the number of years spent on the job.
During the use of this leave and up to 90 days after the return to work of the employee, the employee may not be dismissed from the job and the employer who dismisses a worker during this term may be fined with one additional year of remuneration, or the immediate return of the employee to his position, at the employee's choice.
Employers may hire temporary personnel to replace employees making use of their leave of absence, without the obligation to pay additional charges and without the 180-day limitation that this type of contract usually has.
4. Paid Leave of absence for hospitalization or illness of the children
Employees have the right to 25 days of paid leave of absence to care for their children in case of hospitalization (for any reason), or if the child has a degenerative disease.
This legal provision has several gaps, especially as indicated below:
- The law does not provide an age limit of the child for the employee to be entitled to this right, so it should be considered as a child of any age.
- It does not clarify if the father should take the full 25 days or only the hospitalization time. The understanding is that only the hospitalization time, pursuant to the hospital certificate that the employee must provide to the employer.
- It does not specify what would happen if two or more children are hospitalized at the same time.
- There is no express rule compelling the employer to pay additional compensations to the employee in case of unfair dismissal during the leave of absence.
Despite the legislator's good efforts to introduce the paternity leave of absence, these benefits in favor of the employees represent an additional cost for employers because there is no paternity aid from the Instituto Ecuatoriano de Seguridad Social (Social Security Institute) –such as the case of working mothers-, so the employers must continue paying full remuneration to employees enjoying this right, and eventually hire substitute personnel. Also, in no situation the law provides a mechanism to cover this absences without paying extra charges. There is the urgent need for a legal reform which includes these aspects.
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.