Many women and mothers ask questions in connection with Maternity Leave. WHAM contacted the mother and lawyer, Roselyn Borg Knight, who answered a number of questions that are the most asked about Maternity Leave.
The answers to the following questions should only be taken as a generic explanation of existing laws and regulations and should in no way be considered as legal advice for any situation.
1. What is Maternity Leave, how long is it, and who is entitled to it?
Maternity Leave is a period of leave given to mothers who are about to give birth to a baby, where they are legally guaranteed a period in which they can enjoy those very special and important first weeks with their baby. This leave is for a total of 18 weeks, which must be taken continuously.
2. How should one apply for Maternity Leave? How does the system work?
In order to apply for Maternity Leave, you should speak to your company’s HR or whoever is generally responsible for leave issues where HR is not there. At this stage, you should inform your employer (in writing, at least 4 weeks in advance) of the dates you wish to take leave.
The law provides that at least 6 weeks of this leave must be taken after the birth of the baby, while it is recommended (but not mandatory) that 4 weeks be taken before the birth. The rest of the weeks can be distributed according to the wishes of the employee.
3. Who pays the first Maternity Leave pay? The government or the employer?
The first 14 weeks of Maternity Leave are paid directly by the employer based on the mother’s regular salary. The rest of the leave (4 weeks) is paid from the Maternity Leave Benefit (see point number 4).
4. What is the difference between Maternity Benefit and Maternity Leave Benefit?
The Maternity Benefit is a benefit that is given to mothers when they are not going to use the Maternity Leave or when they are self-employed and qualify for the same benefit.
The Maternity Leave Benefit is the benefit that I mentioned in point number 3, which is taken by a mother for the last 4 weeks of Maternity Leave after she has already used the first 14 weeks of Leave of – Maternity paid by her employer.
It is recommended that in case you will be benefiting from any benefit, speak to your HR or the Department of Social Security. More information can be found on these pages:
– https://socialsecurity.gov.mt/en/information-and-applications-for-benefits-and-services/family-benefits/maternity-benefit/
– https://socialsecurity.gov.mt/en/information-and-applications-for-benefits-and-services/family-benefits/maternity-leave-benefit/
5. If a woman is working full-time reduced hours, where the hours vary from week to week, what is the amount of Maternity Leave she is entitled to?
As a duration, the entitlement remains the same for everyone. The only thing that varies is the rate at which you will be paid for this leave. Maternity Leave, like any other type of leave, is paid pro rata according to the amount of hours you regularly work. In a case where you have hours that vary from week to week, the law does not specifically provide what happens in that case, but an average of the hours you have worked in a specific period should be taken. Such period may vary by industry or applicable collective agreement.
6. When a mother has exceeded the second month of Maternity Leave and tries to contact her employer because she has not yet been paid for any month, but she is not receiving any response back, what are the rights of the mother?
The payment that a mother should receive during Maternity Leave should still be considered as pay. For you, as in any case where the wage is not paid, you can seek legal advice or make an appointment with the Department of Industrial Relations and Employment (Melita Street, Valletta).
In a case like this, there may be other legal issues buried behind the non-payment, such as discrimination, and it would be worthwhile for you to seek advice.
7. Several women ask how fair it is that a woman has only 4 months of Maternity Leave with normal pay, especially those who work and whose main income is from their work.
This is an issue regularly debated by politicians and leaders with the aim of achieving a balance between the rights of employers versus the global benefit of Maternity Leave, where mothers can rest assured that they will have a period of leave paid upon the birth of their child, while they are guaranteed their place upon their return to work.
This is a balance that will always face two conflicting tracks, where each party will have its arguments to put forward, and which is generally subject to the political and economic realities of any country or of the European Union because the latter has the power to improve such entitlements, as was done a number of years ago when the Maternity Leave period was increased from 14 to 18 weeks as a consequence of a European Union law that required this to be done in each member state.
8. If a person decides not to return to work after Maternity Leave as well as after another year of unpaid leave to continue taking care of the baby, will the mother have to pay back the Maternity Leave for which you have been paid?
The rule is that an employee who has taken the Maternity Leave to which she is entitled must return to work for at least a period of six months.
If the same employee does not return to work at the end of the Maternity Leave or leaves work during the period of six months from her return, she will be obliged to return all the money to her employer, which has been paid to her during the leave period.
The six months start to count when the woman returns to work, even if she has taken another leave (e.g. Parental) exactly at the end of the Maternity Leave.
Of course, this only applies if she has left work without a sufficient reason in law.
9. What are the rights of a mother who is on Maternity Leave and gets pregnant again?
In this case, the mother must inform the employer of her pregnancy according to the law, as if she were attending work as usual. Of course, since the total of the Maternity Leave is no more than four and a half months, it ends before the birth of the next child.
Thus, when the time comes again for the birth, the same procedure for taking Maternity Leave will apply again, even if the mother is still out on Parental Leave or further leave after the end of the previous Maternity Leave.
10. If a mother plans to give birth by caesarean section, for example, on February 1, can that mother take February 1, 2 and 3 as Sick Leave and start with Maternity Leave from February 4th?
The caesarean section does not change the date of birth. If the mother is still recovering in the days after the birth, these days will still be deducted from the Maternity Leave – see point number 2.
11. When a mother returns to work after maternity leave, is there any amount of months she must work before changing jobs?
See point number 8.
12. Regarding the tax reduction when a person returns from Maternity Leave, if that person takes Vacation Leave right after Maternity Leave, they must apply for such a reduction in those few weeks that you have taken Vacation Leave?
Since income tax cases can vary from one individual to another depending on the status of the individual, it is recommended that questions of this type be directed to the Office of the Tax Commissioner (Furjana).
