Gave a birth of the female employee signifies that, the beginning of the critical period for both the health of the mother and the baby. The permissions which given after childbirth are extremely important for the mother to regain her health and for the baby to ensure a good and healthy development. Although working women are entitled to maternity leave, breast-feeding leave and unpaid leave after giving birth; an application was introduced on 29.01.2016 with the additional paragraph added to the 13th article of the Labor Law No. 4857, for parents who want to be involved both in business life and to be with the child in the years when development is most important for the child. The related issue is also regulated by the “Regulation on Part-Time Work to be Made After Maternity Leave or Unpaid Leave”.
According to Labour Law Article 74/1 and Article 5 of the “Regulation on Maternity Leave or Part-Time Work to Be Done After Unpaid Leave”; It is essential that female employees are not employed for a total of sixteen weeks, eight weeks before birth and eight weeks after birth. In case of multiple pregnancy, two weeks must be added to the eight-week period that cannot be worked before the birth. In case the female employee gives birth prematurely, the non-working periods that she cannot use before the birth are added to the postpartum periods. In case of death of the mother at birth or after birth; the periods that cannot be used after the birth are given to the father.
It is regulated in the Labor Law No. 4857 that, for mothers who want to take more care of their children after birth, they can work at the workplace for up to three weeks before birth with the approval of the doctor, provided that their health conditions are suitable. In this case, working hours of female employees’ are added to the postpartum periods. Employers will not be able to avoid applying the relevant provisions, in case of the existence of these conditions and the demand of the female employee. From the end of the above-mentioned postpartum maternity leave, for the purpose of caring for and raising the child and provided that the child is alive, female employees and female or male employees who adopt a child under the age of three, upon their request, sixty days for the first birth, one hundred and twenty days for the second birth, and one hundred and eighty days for subsequent births, unpaid leave is given as half of the weekly working time for a period of time. In case of multiple pregnancy, thirty days are added to the mentioned periods. If the child is born with a disability, the period is applied as three hundred and sixty days. And again, upon the request of the female employee, up to six months of unpaid leave can be granted after the completion of the sixteen-week period and after the eighteen-week period in multiple pregnancy. Relevant right that has been clearly regulated in the law in a way that does not leave it to the discretion of the employer. However, since it is not possible to use both different maternity leave separately, the law aims to use only one leave right at the request of the female employee.
In accordance with the relevant law and the regulation; After one of the parents uses their rights regulated in Article 74 of the Labor Law, such as maternity leave, the right to unpaid leave of up to six months; they can request part-time work at any time until the beginning of the childs’ obligatory education period. However, there is no precondition for the employee to use all of the rights in Article 74 of the Labor Law No. 4857 in order to request part-time work.
The request for part-time work must be notified to the employer in writing at least one month before starting to benefit from this right.
In the request for part-time work to be directed by the employee to the employer; It is important to include when the request is intended to be used, and the starting and ending times of the work are also important, if it will be worked on all working days. Likewise, it is essential that the employee embodies the demand for part-time work.
In addition, the employee’s spouse should also attach the document indicating that he/she is working in the part-time work request.
According to Article 11 of the “Regulation on Part-Time Work to be Performed After Maternity Leave or Unpaid Leave”; if the employer does not respond to the worker’s request petition within the given time, the request becomes valid on the date specified in the worker’s petition or on the first business day following this date. Employer shall not reject duly part-time work request, made by the Employee. However, it is possible for the employer to evaluate the time interval requested by the employee or to make a suggestion considering the nature of the work performed in accordance with the employee’s request.
It is also necessary to mention the Article 12 of the relevant regulation. Because, in order to be able to do partial work in the specific jobs listed in the relevant article, the employer must find it appropriate to work part-time. These featured works;
Jobs performed by the responsible manager, responsible physician, laboratory manager and those who are expected to work full-time for the jobs considered as health services in private health institutions,
- Due to qualifications, they are working continously, employees are working at jobs considered as industrial and, they work one after the other in shifts without stopping,
- Due to the qualification of their work, seasonal, campaign and contracting works lasting less than a year,
- It is unsuitable work to be carried out by dividing the work time by the working days of the week.
According to the Labor Law No. 4857, the worker who starts working part-time has the right to return to full-time work at any time, provided that she informs her/his employer at least one month in advance. However, since the phrase “for the same child” is mentioned in the provision, when the worker has another child, he/she may request to switch to a part-time employment relationship again. According to Labour Law No.4857 Article 74/7, female employees are given a one and a half hour breast-feeding leave per day to breastfeed their children under the age of one. The employee himself determines between which hours and how many divisions this time will be used. At the same time, this period is counted as the daily working time. Although the contrary is seen in practice, it is not possible to combine breast-feeding leave hours and use them collectively. The only purpose of the article is, not to prevent the development of the child of the working female worker and to breastfeed the child on a regular basis every day. Giving milk leave to a female employee is not at the initiative of the employer. Giving breast-feeding leave to a female employee is not at the initiative of the employer. The employer is obliged to give the breast-feeding leave according to the principles specified in the law. For employers who prevent the use of breastfeeding leave, will be incurred an administrative fine according to Article 104 of the Labor Law.
Damla Davran Işlak, Attorney at Law