Table of contents:
- A. MATERNITY LEAVE
- B. HALF-TIME WORK
- C. UNPAID LEAVE
- D. CONCLUSION
- E. REFERENCES
A. MATERNITY LEAVE
Article 74 of Labor Law No. 4857: "It is essential that female workers are not employed for a total period of sixteen weeks, eight weeks before and eight weeks after childbirth. In case of multiple pregnancies, two weeks are added to the eight-week period before the birth. However, if the health condition is suitable, with the approval of the doctor, the female worker may work at the workplace up to three weeks before the birth if she wishes. In this case, the periods worked by the female worker are added to the postnatal periods. If the female worker gives birth prematurely, the periods that she could not use before the birth shall be added to the postnatal periods. In case of the death of the mother during or after childbirth, the periods that cannot be used after childbirth shall be made available to the father. One of the spouses who adopt a child under the age of three or the adopter shall be granted eight weeks of maternity leave from the date the child is actually delivered to the family." The leave granted to female workers for the periods they are not employed due to childbirth is called "Maternity Leave". This leave lasts for a total of sixteen weeks, eight weeks before and eight weeks after the birth. In case of multiple pregnancies, two weeks are added to the period before the birth, making the total period ten weeks.
In this case, there are two important issues:
- Working with a Doctor's Report: If the health condition of the female worker does not significantly affect the pregnancy, with the approval of the doctor, the female worker can work up to three weeks before the birth. In this case, the time she works is added to her postnatal leave period. For example, a female worker who continues to work for five weeks before the birth can take 13 weeks of leave after the birth.
- Last Three Weeks Before the Birth: It is not possible for a female worker to work in the last three weeks before the birth. She must not work during this period.
The employer has no discretion on this issue. A doctor's report is sufficient and the employer's permission is not required. In case of premature birth, leave periods not used before birth are added to the postnatal leave period. It is stated in the law that the two-week period added in multiple pregnancies can only be added to the eight-week period before the birth. Therefore, it is not possible to use this leave after the birth.
In the event of the death of the mother during or after childbirth, any unused postnatal leave time is granted to the father. This leave is for the purpose of parenting and caring for the child. If the child is stillborn, although there is no explicit provision in the law, it is generally accepted that the leave period will continue. This does not vary due to the psychological state of the mother and the birth process and is aimed at protecting the health of the woman. If the mother and child die together, the father is not granted maternity leave.
Adoption Status: One of the spouses or the adopter who adopts a child under the age of three is granted eight weeks of maternity leave from the date the child is actually delivered to the family. The purpose of this leave is to establish a relationship rather than raising the child, even though it is not a birth.
An unemployed woman may be offered or find a job within eight weeks of giving birth. In this case, she can notify the employer of the birth and start her employment contract within the leave period and start work at the end of the leave period. Maternity leave is a situation where the employment contract is not terminated due to the temporary inability of the employee to fulfill her/his job duties. The employment relationship continues with the removal of the obstacles. At the end of pregnancy and maternity leave periods, notification periods begin. These regulations aim to protect the health and family life of women workers during and after childbirth.
B. HALF-TIME WORK
After maternity leave, the need for additional leave may arise due to the small size of the child and its dependence on the parent. Various rights have been defined as a solution to this situation. One of these is the right to half-time work, which can be used after the end of the maternity leave period. Article 74, Paragraph 2 of the Labor Law No. 4857 states "From the end of the postnatal maternity leave used in accordance with the first paragraph, for the care and upbringing of the child and provided that the child is alive, female workers and female or male workers who adopt a child under the age of three shall be granted unpaid leave for sixty days for the first birth, one hundred and twenty days for the second birth, and one hundred and eighty days for subsequent births for half of the weekly working hours. In case of multiple births, thirty days are added to these periods. If the child is born disabled, this period is applied as three hundred and sixty days. During the period when the provisions of this paragraph are utilized, the provisions regarding breastfeeding leave are not applied." This provision is in effect. This regulation should be analyzed under several sub-headings.
Right to Half Time Working:
- From the end of the maternity leave after childbirth, female workers and female or male workers who adopt a child under the age of three can use the right to part-time work if they wish, for the care and upbringing of the child and provided that the child is alive.
- Unpaid leave is granted for 60 days for the first birth, 120 days for the second birth and 180 days for subsequent births for half of the weekly working hours. For multiple births, 30 days are added to these periods.
- If the child is born with a disability, this period is applied as 360 days.
- Provisions regarding breastfeeding leave are not applied during these periods.
Doctor's Report and Leave: Just as in the case of maternity leave, the half-working period can be increased with a doctor's report according to the health status of the worker and the nature of the work. In order to use the half-working leave, the maternity leave period must be over and the worker must make a request. In addition, the worker and the child must be alive and the employment relationship must continue.
Half-time Working Allowance: During the half-time working period, the employer pays wages depending on the time the worker has worked. If the conditions are met, the remaining wage can be paid from the unemployment fund upon application to İŞKUR. The half-work allowance ends with the end of the leave period.
These provisions in the law aim to protect the employment relationship while allowing parents to spend more time caring for their children after maternity leave and protecting the family structure of society.
C. UNPAID LEAVE
Unpaid leave rights are the rights of workers arising from the legislation, as well as sometimes arising from the will of the employer. The employer has no discretion in unpaid leaves arising from the legislation, and the leaves must be used if the employee requests it. Article 74 of the Labor Law stipulates that "Upon request, a female employee shall be granted unpaid leave for up to six months after the completion of sixteen weeks or after eighteen weeks in case of multiple pregnancy. This leave shall be granted to one of the spouses or the adopter in case of adoption of a child under three years of age. This period is not taken into account in the calculation of the annual paid leave right." The six-month unpaid leave right regulated as follows is also within this scope.
The employer has no authority in this case and workplace-specific leave practices are not valid against this legal right to leave. The six-month unpaid leave right and the half-work leave are different, but the time of use is the same. Both can be used after maternity leave, but it is not possible to use both at the same time. If the unpaid maternity leave is not used, the female employee who gives birth can start her maternity leave by notifying the employer. In the event that the employer does not fulfill its obligation to grant leave and rejects the employee's request for leave, an administrative fine will be imposed.
The unpaid leave period is not taken into account in the calculation of the annual paid leave right. However, these periods may be increased according to the health status of the worker and the nature of the work. Within the scope of paid leave, a female worker has the right to periodic examinations during pregnancy. In fact, if deemed necessary by a doctor's report, the pregnant worker can be shifted to light work and this situation cannot cause a decrease in the wage of the worker.
D. CONCLUSION
Labor Law No. 4857 aims to ensure that women workers are not separated from their work life and at the same time protect their family structure. Therefore, the rights of female workers who give birth are regulated as explained above. In fact, the legislator tries to balance family and work life by ensuring that workers who become parents not only through birth but also through adoption benefit from almost the same rights.
E. REFERENCES
- Labor Law No. 4857
- Çalışkan A, Maternity and Parental Leave in Labor Law (Onİki Levha Yayınları 2018)
- Kılınç M. Gizem, Maternity Leave and Partial Time Work Application, (Eskişehir Barosu Dergisi 2023)
- Korkmaz F, Alp N.S, Individual Labor Law (3 B, Seçkin Yayınevi 2016)
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.