María Teresa Mendoza Vallejo, Partner, Labor Law, Morgan & Morgan
On May 24, 2017, Act 27 of May 23rd, 2017 was published in the Official Gazette No. 28285-B of May 24th, 2017, which establishes the Paternity Leave, applicable both to employees of private sector, as well as to public servants, effective since May 25th, 2017.
This Act, whose initiative was promoted by the Ministry of Labor, is based on the duty of the Panamanian state to protect the family, sacred in our Constitution. Family protection includes paid compulsory leave for pregnant women, known as maternity leave, which in addition to taking care of the mother’s health, seeks to ensure the child’s survival in the last weeks of gestation, as well as guaranteeing she is cared for and tended to by her mother.
This protection for the child has been extended, taking into consideration that the international trend is to promote the participation of men in family responsibilities and child development, with the creation of the Paternity Leave. A recent study entitled Paternity Leave and Parental Leave in Latin America and the Caribbean; Indispensable Tools to Encourage More Parent Involvement in the Care of Sons and Daughters states: “In most Latin America and Caribbean countries, institutional reform is necessary to encourage the incorporation of women into the labor market and to promote greater participation of men in the care of their children. In order for both partners to work in a remunerated way and, in turn, perform parental functions in a shared manner, it is necessary to extend to the male workers the care guarantees that are not linked to the exclusively procreative biological function of women: pregnancy, childbirth and breastfeeding. In this sense, paternity leave and parental leave are useful tools to advance, from the work environment, towards overcoming the old model “male provider and female housewife.” ((1) Lupica)
Paternity leave is more common in developed economies from Africa, Eastern Europe, and Central Asia. However, it has begun to be adopted in Latin American. Countries, such as, Argentina, Brazil, Chile, Colombia, Ecuador, El Salvador, Guatemala, Paraguay, Dominican Republic, Uruguay and Venezuela. Panama, with this new Act, is in tune with the world trends, since until now this concept only existed in some collective bargainings.
Characteristics of the recently approved Paternity Leave in Panama
- Paternity leave applies to male employees and public servants, whose wife or cohabiting partner, in conditions of singularity and stability, is in a pregnant state.
- In order to qualify for paternity leave, the employee must inform the employer, one week in advance, of the probable date of birth.
- The paternity leave will be for a term of three (3) business days, which will be counted as an effective working time, during which period the employee benefited with the license will not be able to work for another employer or for himself.
- The leave will start from the date of birth of the son or daughter, meaning that the employee cannot legally postpone the enjoyment of that leave.
- The employee is obliged to submit to his employer the birth certificate certifying him as the father of the child.
It is important to note that since days of paternity leave are considered according to law, effective working time and, there is no subsidy from the Social Security Fund, it must be the employer who assumes the payment of the salary corresponding to the three (3) business days corresponding to the leave.
This law constitutes a great advance in the subject of gender equality and also benefits the parents, since it allows them to develop a closer relationship with their children from very early on, something that was previously reserved to a greater degree for the mother.
Notwithstanding the foregoing, the text of the Act is really short and leaves some gaps. Among the questions that can arise in the implementation of the leave, is how to prove the condition of singularity and stability of the couple when they are not legally married. The Act does not establish a period of time to determine the stability of a couple, nor what means of proof would be adequate to demonstrate coexistence under conditions of singularity. For example, situations may arise where a legally unmarried couple may have some time living together but they do not meet the requirements for their union to be registered as a de facto marriage or even if they do meet the stability requirement by being together for several years one of the members of the couple may be still legally married to another person.
These gaps should be corrected, in the regulatory decree, which we hope will be issued promptly in order to facilitate the implementation of this Act.
- Lupica, C. (2016). Licencias de paternidad y permisos parentales en América Latina y el Caribe. Herramientas indispensables para propiciar la mayor participación de los padres en el cuidado de los hijos e hijas. Masculinities and Social Change,5(3),295-320. doi: 10.17583/MCS.2016.2083.