The ongoing debate regarding the government’s potential revocation of gestational mourning leave has been complex, yet unanswered questions persist.
Women’s rights, particularly concerning salary, appear unaffected by the potential nullification of the three days of gestational mourning leave. Instead, they will utilize the miscarriage leave, which lasts from 14 to 30 days based on medical advice and is compensated at 100% of their reference salary.
The Portuguese public services portal indicates this amount reflects the average salary “in the first six months of the last eight” excluding holiday and Christmas bonuses. If the registered salary is low, the minimum is €13.58 per day, with a 2% increase in autonomous regions.
There are three notable differences for women in this scenario.
Firstly, the duration of leave increases from three days to a minimum of 14.
Secondly, the process becomes more formal, requiring a medical certificate.
Lastly, the payment source changes. Previously, employers covered the full three-day mourning leave, but with the shift to medical leave for miscarriage, the compensation will be managed by Social Security, funded by taxpayers.
Spouses or partners may be left uncompensated
Spouses or partners of the women do not qualify for the same leave and thus will not benefit from this legislation.
Without miscarriage leave rights, partners must justify absences as assistance to a family member in such cases.
According to Article 252 of the Labor Code, “a worker is entitled to up to 15 days of leave per year for urgent and indispensable assistance in the event of illness or accident,” for a spouse or common-law partner, or a relative in the second degree of the collateral line.
This raises questions about compensation for spouses or partners who choose to take this leave.
Labor and human resources lawyer Catarina Lima Soares explains to Notícias ao Minuto that “compensation depends on Social Security granting benefits, which in this case is not clearly anticipated for situations of a family member’s gestational loss.” She added, “the partner may have to take leave without pay unless there’s an extensive interpretation or future legal clarification.”
The government itself has acknowledged this in an interview with Lusa. “The Government’s proposal in this draft allows the other parent a more extended period of justified absence, without remuneration,” said the Ministry of Labor, Solidarity, and Social Security.
Inequitable treatments may occur
However, the issues with this legislation extend further. The referenced article stipulates that absences are for “urgent and indispensable assistance in the event of illness or accident.” Nonetheless, a miscarriage is not typically classified as a “disease” in the technical-legal sense, nor as an “accident.”
Catarina Lima Soares states, “its inclusion under family assistance leave will depend on the physician’s interpretation and the employer’s or Social Security’s acceptance.”
If the law remains unchanged, “it may result in unequal treatment and challenges in justifying and compensating the partner’s absences, particularly in early pregnancy loss cases without hospitalization or extended medical intervention,” the lawyer explains.
For partners and spouses, it involves not only wage loss but also absences that may not be approved by employers—or might be accepted in some cases and not in others, based purely on chance or luck.
Therefore, the “more favorable regime for the gestant’s partners,” referenced as the increase from three to 15 justified absence days, might not be applicable in certain instances. This remains the case without additional clarifications regarding partner rights in these situations.
