Legal provisions of COM(2017)253 - Work-life balance for parents and carers

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This page contains a limited version of this dossier in the EU Monitor.

dossier COM(2017)253 - Work-life balance for parents and carers.
document COM(2017)253 EN
date June 20, 2019

Contents

Article 1 - Subject matter

This Directive lays down minimum requirements designed to achieve equality between men and women with regard to labour market opportunities and treatment at work, by facilitating the reconciliation of work and family life for workers who are parents, or carers.

To that end, this Directive provides for individual rights related to the following:

(a)paternity leave, parental leave and carers' leave;

(b)flexible working arrangements for workers who are parents, or carers.

Article 2 - Scope

This Directive applies to all workers, men and women, who have an employment contract or employment relationship as defined by the law, collective agreements or practice in force in each Member State, taking into account the case-law of the Court of Justice.

Article 3 - Definitions

1. For the purposes of this Directive, the following definitions apply:

(a)‘paternity leave’ means leave from work for fathers or, where and insofar as recognised by national law, for equivalent second parents, on the occasion of the birth of a child for the purposes of providing care;

(b)‘parental leave’ means leave from work for parents on the grounds of the birth or adoption of a child to take care of that child;

(c)‘carers' leave’ means leave from work for workers in order to provide personal care or support to a relative, or to a person who lives in the same household as the worker, and who is in need of significant care or support for a serious medical reason, as defined by each Member State;

(d)‘carer’ means a worker providing personal care or support to a relative, or to a person who lives in the same household as the worker, and who is in need of significant care or support for a serious medical reason, as defined by each Member State;

(e)‘relative’ means a worker's son, daughter, mother, father, spouse or, where such partnerships are recognised by national law, partner in civil partnership;

(f)‘flexible working arrangements’ means the possibility for workers to adjust their working patterns, including through the use of remote working arrangements, flexible working schedules, or reduced working hours.

2. The reference to working days in Articles 4 and 6 shall be understood as referring to the full-time working pattern, as defined in the Member State in question.

A worker's entitlement to leave may be calculated proportionally to the worker's working time, in accordance with the working pattern specified in the worker's contract of employment or employment relationship.

Article 4 - Paternity leave

1. Member States shall take the necessary measures to ensure that fathers or, where and insofar as recognised by national law, equivalent second parents, have the right to paternity leave of 10 working days that is to be taken on the occasion of the birth of the worker's child. Member States may determine whether to allow paternity leave to be taken partly before or only after the birth of the child and whether to allow such leave to be taken in flexible ways.

2. The right to paternity leave shall not be made subject to a period of work qualification or to a length of service qualification.

3. The right to paternity leave shall be granted irrespective of the worker's marital or family status, as defined by national law.

Article 5 - Parental leave

1. Member States shall take the necessary measures to ensure that each worker has an individual right to parental leave of four months that is to be taken before the child reaches a specified age, up to the age of eight, to be specified by each Member State or by collective agreement. That age shall be determined with a view to ensuring that each parent is able to exercise their right to parental leave effectively and on an equal basis.

2. Member States shall ensure that two months of parental leave cannot be transferred.

3. Member States shall establish a reasonable period of notice that is to be given by workers to employers where they exercise their right to parental leave. In doing so, Member States shall take into account the needs of both the employers and the workers.

Member States shall ensure that the worker's request for parental leave specifies the intended beginning and end of the period of leave.

4. Member States may make the right to parental leave subject to a period of work qualification or to a length of service qualification, which shall not exceed one year. In the case of successive fixed-term contracts within the meaning of Council Directive 1999/70/EC (14) with the same employer, the sum of those contracts shall be taken into account for the purpose of calculating the qualifying period.

5. Member States may establish the circumstances in which an employer, following consultation in accordance with national law, collective agreements or practice, is allowed to postpone the granting of parental leave for a reasonable period of time on the grounds that the taking of parental leave at the time requested would seriously disrupt the good functioning of the employer. Employers shall provide reasons for such a postponement of parental leave in writing.

6. Member States shall take the necessary measures to ensure that workers have the right to request that they take parental leave in flexible ways. Member States may specify the modalities of application thereof. The employer shall consider and respond to such requests, taking into account the needs of both the employer and the worker. The employer shall provide reasons for any refusal to accede to such a request in writing within a reasonable period after the request.

7. Member States shall take the necessary measures to ensure that when considering requests for full-time parental leave, employers shall, prior to any postponement in accordance with paragraph 5, offer, to the extent possible, flexible ways of taking parental leave pursuant to paragraph 6.

8. Member States shall assess the need for the conditions of access to and the detailed arrangements for the application of parental leave to be adapted to the needs of adoptive parents, parents with a disability and parents with children with a disability or a long-term illness.

Article 6 - Carers' leave

1. Member States shall take the necessary measures to ensure that each worker has the right to carers' leave of five working days per year. Member States may determine additional details regarding the scope and conditions of carers' leave in accordance with national law or practice. The use of that right may be subject to appropriate substantiation, in accordance with national law or practice.

2. Member States may allocate carers' leave on the basis of a reference period other than a year, per person in need of care or support, or per case.

Article 7 - Time off from work on grounds of force majeure

Member States shall take the necessary measures to ensure that each worker has the right to time off from work on grounds of force majeure for urgent family reasons in the case of illness or accident making the immediate attendance of the worker indispensable. Member States may limit the right of each worker to time off from work on grounds of force majeure to a certain amount of time each year or by case, or both.

Article 8 - Payment or allowance

1. In accordance with national circumstances, such as national law, collective agreements or practice, and taking into account the powers delegated to the social partners, Member States shall ensure that workers who exercise their right to leave provided for in Article 4(1) or Article 5(2) receive a payment or an allowance in accordance with paragraphs 2 and 3 of this Article.

2. With regard to paternity leave as referred to in Article 4(1), such payment or allowance shall guarantee an income at least equivalent to that which the worker concerned would receive in the event of a break in the worker's activities on grounds connected with the worker's state of health, subject to any ceiling laid down in national law. Member States may make the right to a payment or an allowance subject to periods of previous employment, which shall not exceed six months immediately prior to the expected date of the birth of the child.

3. With regard to parental leave as referred to in Article 5(2), such payment or allowance shall be defined by the Member State or the social partners and shall be set in such a way as to facilitate the take-up of parental leave by both parents.

Article 9 - Flexible working arrangements

1. Member States shall take the necessary measures to ensure that workers with children up to a specified age, which shall be at least eight years, and carers, have the right to request flexible working arrangements for caring purposes. The duration of such flexible working arrangements may be subject to a reasonable limitation.

2. Employers shall consider and respond to requests for flexible working arrangements as referred to in paragraph 1 within a reasonable period of time, taking into account the needs of both the employer and the worker. Employers shall provide reasons for any refusal of such a request or for any postponement of such arrangements.

3. When flexible working arrangements as referred to in paragraph 1 are limited in duration, the worker shall have the right to return to the original working pattern at the end of the agreed period. The worker shall also have the right to request to return to the original working pattern before the end of the agreed period where justified on the basis of a change of circumstances. The employer shall consider and respond to a request for an early return to the original working pattern, taking into account the needs of both the employer and the worker.

4. Member States may make the right to request flexible working arrangements subject to a period of work qualification or to a length of service qualification, which shall not exceed six months. In the case of successive fixed-term contracts within the meaning of Directive 1999/70/EC with the same employer, the sum of those contracts shall be taken into account for the purpose of calculating the qualifying period.

Article 10 - Employment rights

1. Rights that have been acquired or that are in the process of being acquired by workers on the date on which leave provided for in Articles 4, 5 and 6 or time off from work provided for in Article 7 starts shall be maintained until the end of such leave or time off from work. At the end of such leave or time off from work, those rights, including any changes arising from national law, collective agreements or practice, shall apply.

2. Member States shall ensure that, at the end of leave provided for in Articles 4, 5 and 6, workers are entitled to return to their jobs or to equivalent posts on terms and conditions which are no less favourable to them, and to benefit from any improvement in working conditions to which they would have been entitled had they not taken the leave.

3. Member States shall define the status of the employment contract or employment relationship for the period of leave provided for in Articles 4, 5 and 6, or time off from work provided for in Article 7, including as regards entitlements to social security, including pension contributions, while ensuring that the employment relationship is maintained during that period.

Article 11 - Discrimination

Member States shall take the necessary measures to prohibit less favourable treatment of workers on the ground that they have applied for, or have taken, leave provided for in Articles 4, 5 and 6 or time off from work provided for in Article 7, or that they have exercised the rights provided for in Article 9.

Article 12 - Protection from dismissal and burden of proof

1. Member States shall take the necessary measures to prohibit the dismissal and all preparations for the dismissal of workers, on the grounds that they have applied for, or have taken, leave provided for in Articles 4, 5 and 6, or have exercised the right to request flexible working arrangements referred to in Article 9.

2. Workers who consider that they have been dismissed on the grounds that they have applied for, or have taken, leave provided for in Articles 4, 5 and 6, or have exercised the right to request flexible working arrangements as referred to in Article 9, may request the employer to provide duly substantiated reasons for their dismissal. With respect to the dismissal of a worker who has applied for, or has taken, leave provided for in Article 4, 5 or 6, the employer shall provide reasons for the dismissal in writing.

3. Member States shall take the measures necessary to ensure that where workers who consider that they have been dismissed on the grounds that they have applied for, or have taken, leave provided for in Articles 4, 5 and 6 establish, before a court or other competent authority, facts capable of giving rise to a presumption that they have been dismissed on such grounds, it shall be for the employer to prove that the dismissal was based on other grounds.

4. Paragraph 3 shall not prevent Member States from introducing rules of evidence which are more favourable to workers.

5. Member States shall not be required to apply paragraph 3 to proceedings in which it is for the court or competent body to investigate the facts of the case.

6. Paragraph 3 shall not apply to criminal proceedings, unless otherwise provided by the Member States.

Article 13 - Penalties

Member States shall lay down the rules on penalties applicable to infringements of national provisions adopted pursuant to this Directive, or the relevant provisions already in force concerning the rights which are within the scope of this Directive, and shall take all measures necessary to ensure that they are implemented. The penalties provided for shall be effective, proportionate and dissuasive.

Article 14 - Protection against adverse treatment or consequences

Member States shall introduce measures necessary to protect workers, including workers who are employees' representatives, from any adverse treatment by the employer or adverse consequences resulting from a complaint lodged within the undertaking or any legal proceedings for the purpose of enforcing compliance with the requirements laid down in this Directive.

Article 15 - Equality bodies

Without prejudice to the competence of labour inspectorates or other bodies that enforce the rights of workers, including the social partners, Member States shall ensure that the body or bodies designated, pursuant to Article 20 of Directive 2006/54/EC, for the promotion, analysis, monitoring and support of equal treatment of all persons without discrimination on grounds of sex, are competent with regard to issues relating to discrimination falling within the scope of this Directive.

Article 16 - Level of protection

1. Member States may introduce or maintain provisions that are more favourable to workers than those laid down in this Directive.

2. The implementation of this Directive shall not constitute grounds for justifying a reduction in the general level of protection of workers in the areas covered by this Directive. The prohibition of such a reduction in the level of protection shall be without prejudice to the right of Member States and the social partners to lay down, in light of changing circumstances, legislative, regulatory or contractual arrangements other than those in force on 1 August 2019, provided that the minimum requirements laid down in this Directive are complied with.

Article 17 - Dissemination of information

Member States shall ensure that the national measures transposing this Directive, together with the relevant provisions already in force relating to the subject matter as set out in Article 1, are brought to the attention of workers and employers, including employers that are SMEs, by all appropriate means throughout their territory.

Article 18 - Reporting and review

1. By 2 August 2027, Member States shall communicate to the Commission all information concerning the implementation of this Directive that is necessary for the Commission to draw up a report. That information shall include available aggregated data on the take-up of different types of leave and flexible working arrangements, by men and women pursuant to this Directive, for the purposes of allowing the proper monitoring and assessment of the implementation of this Directive, in particular with regard to gender equality.

2. The Commission shall submit the report referred to in paragraph 1 to the European Parliament and to the Council. The report shall, if appropriate, be accompanied by a legislative proposal.

The report shall also be accompanied by:

(a)a study of the interaction between the different types of leave provided for in this Directive as well as other types of family-related leave, such as adoption leave; and

(b)a study of the rights to family-related leave that are granted to self-employed persons.

Article 19 - Repeal

1. Directive 2010/18/EU is repealed with effect from 2 August 2022. References to the repealed Directive shall be construed as references to this Directive and shall be read in accordance with the correlation table set out in the Annex.

2   Notwithstanding the repeal of Directive 2010/18/EU pursuant to paragraph 1 of this Article, any period or separate cumulative periods of parental leave taken or transferred by a worker pursuant to that Directive before 2 August 2022 may be deducted from that worker's parental leave entitlement under Article 5 of this Directive.

Article 20 - Transposition

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 2 August 2022. They shall immediately inform the Commission thereof.

2. Notwithstanding paragraph 1 of this Article, for the payment or allowance corresponding to the last two weeks of parental leave as provided for in Article 8(3), Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 2 August 2024. They shall immediately inform the Commission thereof.

3. When Member States adopt the measures referred to in paragraphs 1 and 2, they shall contain a reference to this Directive or shall be accompanied by such a reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.

4. Member States shall communicate to the Commission the text of the main measures of national law which they adopt in the areas covered by this Directive.

5. The detailed rules and modalities for applying this Directive shall be established in accordance with national law, collective agreements or practice, as long as the minimum requirements and the objectives of this Directive are respected.

6. For the purposes of complying with Articles 4, 5, 6 and 8 of this Directive and with Directive 92/85/EEC, Member States may take into account any period of, and payment or allowance with respect to, family-related time off work, in particular maternity leave, paternity leave, parental leave and carers' leave, available at national level which is above the minimum standards provided for in this Directive or in Directive 92/85/EEC, provided that the minimum requirements for such leave are met and that the general level of protection provided to workers in the areas covered by those Directives is not reduced.

7. Where Member States ensure a payment or an allowance of at least 65 % of the worker's net wage, which may be subject to a ceiling, for at least six months of parental leave for each parent, they may decide to maintain such system rather than provide for the payment or allowance referred to in Article 8(2).

8. Member States may entrust the social partners with the implementation of this Directive, where the social partners jointly request to do so, provided that Member States take all the necessary steps to ensure that the results sought by this Directive are guaranteed at all times.

Article 21 - Entry into force

This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

Article 22 - Addressees

This Directive is addressed to the Member States.