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Guatemala - Maternity protection - 2011


LAST UPDATE

30 Noviembre 2011.

Data quantity

NORMAL

SOURCES


Name of Act

Decree No. 1441 promulgating the Labour Code, (Codigo de Trabajo El Guatemalteco No. 14, 14 June 1961, p. 145) of 5 May 1961, as amended up, to Decree n° 18 (Diario de Centro América, No.68 p.2-5, dated 25 May 2001) of 14 May 2001

Name of Act

Decree No. 295 establishing the Organic Law on the Guatemalan Social Security Institution, (Ley Orgánica del Instituto Guatemalteco de Seguridad Social) Decretos del Congreso de la República, Bulletin No. 7, 1947, p.344), of 30 October 1946.

Name of Act

Regulation on the Breastfeeding Period, (Reglamento para el Goce del Período de Lactancia,Diario Oficial de 19 de Enero de 1973) of 15 January 1973.

Name of Act

Constitution of the Republic of Guatemala, 31 May 1985 (Diario de Centro América No. 41, 3 June 1985, p. 897) as amended up to Legislative Agreement (Acordo legislativo) 18-93, (Diario de Centro América, 24 November 1993).

Name of Act

Government Decision No. 1149 approving decision No. 410 of the Board of Directors of the Guatemalan Social Security Institute, which contains regulations on protection relating to sickness, 10 May 1967 (El Guatemalteco No. 58, 11 May 1967) with reforms until Decision No. 1154, 5 August 2005 (Diario de Centro América No. XXXIV, 2005).

Name of Act

Decree for a healthy maternity No. 32-2010

Name of Act

Agreement No.1235 of 2009 of the Board of the Institute of Social Security of Guatemala Approved by art. 1 of the Government Agreement No.236-2009 of the President of the Republic of Guatemala, which regulates the special social security program for domestic workers.

Name of Act

Agreement No. 410 of the Institute of Social Security of Guatemala, establishing a Regulation on sickness and maternity.

Other source used

MATERNITY LEAVE


Scope

The maternity protection provided by the Labour Code covers all women working in the private sectors.
The labour Code however, applies to legal persons-enterprises of public nature.
Public servants are covered by the Statute of Public Service and its Regulations.
Labour Code §1
Constitution of the Republic of Guatemala §119

Qualifying conditions

Presentation by the employee to the employer of a medical certificate that indicates confinement will take place within the 5 weeks following the signature of this certificate.
Labour Code §152.a

Duration


Compulsory leave

There is not express compulsory leave, however, the mother may accumulate the days not enjoyed of pre-natal leave to the post-natal leave period.
Labour Code §152

General total duration

30 days before and 54 days after confinement.
Labour Code §152
Constitution of the Republic of Guatemala §102(k)
Historical data (year indicates year of data collection)
  • 2009: 30 days before and 54 days after confinement. A woman worker can only take leave from work on presentation of a medical certificate stating that confinement will probably take place within the next five weeks.
  • 2004: Eighty-four days
  • 1998: Eighty-four days
  • 1994: Eighty-four days

Extension

It is not provided extension of the maternity leave in case of multiple birth.
Labour Code

Leave in case of illness or complications

A woman worker may remain absent from her job for a longer period as a result of illness which is confirmed by a medical certificate to have been caused by pregnancy or confinement, provided that this period does not exceed three months, counting from the point when leave was taken.
Labour Code §152(c)

RELATED TYPES OF LEAVE


Parental leave

Not provided.
Labour Code

Paternity leave


Scope

The Labour Code covers all workers in the private sectors.
The labour Code however, applies to legal persons-enterprises of public nature.
Public servants are covered by the Statute of Public Service and its Regulations.
Labour Code §1,61.3

Qualifying conditions

There are not stipulated qualifying conditions to be entitled to paternity leave.
Labour Code §61.3

Length

two days paid leave.
Labour Code §61(3)

Adoption leave

The female employee that adopts a child under 1 year of age, is entitled to "post-partum" leave.

It is not clear whether this post-partum leave is the minimum period of 54 days stipulated for maternity leave after confinement or if it refers to 84 days which is the whole length of the maternity leave.
Labour Code §152.f

Scope

The Labour Code covers all workers in the private sectors.
The labour Code however, applies to legal persons-enterprises of public nature.
Public servants are covered by the Statute of Public Service and its Regulations.
Labour Code §1,152 f.

Qualifying conditions

Presentation by the female employee to the employer of all the documents or rulings certifying that adoption has had taken place.
Labour Code §152.f

Length

A woman worker who adopts a minor is entitled to 54 days’ leave.
Labour Code §152(f)

RIGHT TO PART-TIME WORK

It is not expressly provided as right neither for pregnant workers nor breastfeeding mothers the possibility to apply for part-time working hours.
Labour Code

CASH BENEFITS


Maternity leave benefits


Scope

Social Security covers employees.
Domestic workers benefit from the special program of social security which have entitled them to healthcare benefits and maternity cash benefits.
According to the website of the Institute of Social Security of Guatemala, there are still categories of workers not covered(self-employed among them).
It was not possible to obtain further details on these excluded categories.

Employees not covered by the Institute of Social Security shall receive maternity cash benefits from their employers.

Maternity cash benefits are provided to both biological mothers and adoptive mothers.
Organic Law on the Guatemalan Social Security Institution
Labour Code

Qualifying conditions

In order to be eligible for benefits a woman must have paid contributions for three months out of the six preceding prenatal leave, and she shall not not carry out any other paid work during the period of leave.

Domestic workers must have paid contributions at least during the six months immediately before the date she needs to make use of the Social Security services.
Labour Code §152(e)
Agreement No. 410 of the Institute of Social Security of Guatemala, establishing a Regulation on sickness and maternity. §23
Agreement No.1235 of 2009 of the Board of the Institute of Social Security of Guatemala Approved by art. 1 of the Government Agreement No.236-2009 of the President of the Republic of Guatemala, which regulates the special social security program for domestic workers. §11

Duration

84 days
Labour Code §152
Organic Law on the Guatemalan Social Security Institution §28

Amount

One hundred per cent of income for the period of leave when the worker is not entitled to Social Security benefits, and it is the employer who pays.

When the worker is entitled to social security benefits she will receive an amount in proportion to her contributions.
Labour Code §152
Organic Law on the Guatemalan Social Security Institution §30
Historical data (year indicates year of data collection)
  • 2009: One hundred per cent of income for the period of leave (84 days for a biological child and 54 for adoption), when the worker is not entitled to Social Security benefits, and it is the employer who pays. When the worker is entitled to social security benefits she will receive an amount in porpotion to her contributions.
  • 2004: One hundred percent
  • 1998: One hundred percent
  • 1994: One hundred percent

Financing of benefits

The Guatemalan Social Security Institute covers two thirds of the basic salary and the employer covers the remaining third. Where a woman is not entitled to Social Security benefits, the employer shall cover the full cost.
Social Security is funded on triple contributions made by employees, employers and the State.
Labour Code §152(b)
Organic Law on the Guatemalan Social Security Institution §28; 38
Historical data (year indicates year of data collection)
  • 2009: The Guatemalan Social Security Institute covers two thirds of the basic salary and the employer covers the remaining third. Where a woman is not entitled to Social Security benefits, the employer shall cover the full cost.
  • 2004: Mixed (two-thirds social security, one-third employer)
  • 1998: Mixed (two-thirds social security, one-third employer)
  • 1994: Mixed (two-thirds social security, one-third employer)

Parental leave benefits

Not provided.
Labour Code
Organic Law on the Guatemalan Social Security Institution

Paternity leave benefits


Scope

The Labour Code covers all workers in the private sectors.
The labour Code however, applies to legal persons-enterprises of public nature.
Public servants are covered by the Statute of Public Service and its Regulations.
Labour Code §61.3

Qualifying conditions

There has not been established qualifying conditions to be entitled to paternity paid leave.
Labour Code §61.3

Duration

2 days.
Labour Code §61.3

Amount

100 percent of salary for the two days paternity leave.
Labour Code §61.3

Financing of benefits

Employer.
Labour Code §61.3

Adoption leave benefits


Scope

The Labour Code covers adoptive mothers working in the private sectors.
The labour Code however, applies to legal persons-enterprises of public nature.
Public servants are covered by the Statute of Public Service and its Regulations.

The Social Security covers employees.
Labour Code
Organic Law on the Guatemalan Social Security Institution

Qualifying conditions

The presentation by the female employee to the employer of all documents that certified that the adoption has taken place.
Labour Code §§152.f

Duration

The wording of the law is not explicit in its application to adoptive mothers as maternity leave can be 54 days (post partom) or 84 days (total).
Labour Code §152.f

Amount

Not expressly mentioned.
Labour Code

Financing of benefits

It is not mentioned in the Organic Law on the Guatemalan Social Security Institution, the payment of cash benefits for adoptive mothers.

At the time this up-dating was done it was not possible to have access to any further regulation of this Institute regarding the payment of cash benefits for adoptive mothers. Therefore, as the law stands the obligation would appear to rest with the employer to pay this benefit, according to the Labour Code.
Organic Law on the Guatemalan Social Security Institution
Labour Code

MEDICAL BENEFITS


Pre-natal, childbirth and post-natal care

Medical assistance comprises medical, surgical, therapeutic and hospital care during pregnancy, childbirth and the postnatal period.

The Ministry of Public Health and Social Assistance-MSPAS-, The Institute of Social Security of Guatemala, and NGOs that have among their social goals to offer healthcare services and that have celebrated agreements with the Ministry of Public Health and Social Assistance have the duty to provide healthcare services during pregnancy, confinement and the post-natal period without any discrimination.
Organic Law on the Guatemalan Social Security Institution §30(a)
Decree for a healthy maternity No. 32-2010 §6,7,8,9,10

Financing of benefits

Guatemalan Social Security Institute.
Organic Law on the Guatemalan Social Security Institution §28

BREASTFEEDING


Right to nursing breaks or daily reduction of hours of work

Every woman worker, during the nursing period, should have available to her a place in which to work for half an hour twice a day during her duties in order to feed her child. The Nursing period shall not exceed 10 months unless more favorable provisions are provided for in a collective agreement or according to custom. Nursing breaks shall be remunerated and calculated as time worked.
Labour Code §153,154
Regulation on the Breastfeeding Period §1,2,3

Remuneration of nursing breaks

Nursing breaks shall be remunerated and calculated as time worked.
Labour Code §154

Transfer to another post

Not provided.
Labour Code

Nursing facilities

Every employer who employs more than 30 women must provide an adequate area for mothers to feed their children under three years of age without hazard, and in which to leave them whilst working, under the supervision of an appropriate designated person paid for that task.
Labour Code §155

HEALTH PROTECTION

The work assigned to female workers and minors shall be adequate to their age, physical and intellectual conditions as well as their moral development.
Labour Code §147

Arrangement of working time

Not provided.
Labour Code

Night work

Not prohibited.
Labour Code

Overtime

Not prohibited.
Labour Code

Work on rest days

Not prohibited.
Labour Code

Time off for medical examinations

Not expressly provided.
Labour Code

Leave in case of sickness of the child

Not provided.
Labour Code

Dangerous or unhealthy work

It has not been provided any express legal provision in favor neither of pregnant workers nor breastfeeding mothers.
Labour Code

General

Every employer has the duty to adopt all the necessary precautions to protect effectively the life, safety and health of all workers.
Labour Code §197

Risk assessment

There have not been established legal provisions neither for pregnant workers nor breastfeeding mothers. The Labour Code has established general duties regarding the protection of safety and health of all workers.
Labour Code §197

» Assessment of workplace risks

Not expressly provided neither for pregnant workers nor breastfeeding mothers.
Labour Code

» Adaptation of conditions of work

Not expressly provided neither for pregnant workers nor breastfeeding mothers.
Labour Code

» Transfer to another post

Not provided neither for pregnant workers nor breastfeeding mothers.
Labour Code

» Paid/unpaid leave

If the female worker needs to be absent from work as consequence of illness arisen out from pregnancy of confinement, previous presentation to the employer of a medical certificate in this regard, she shall keep all the maternity cash benefits during the whole time she needs to recover up to three months from the date she stopped working.
Labour Code §152.c

» Right to return

Female workers are not expressly entitled to the right to return to the same work they were performing before taking their maternity leave.
Labour Code

Particular risks


» Arduous work (manual lifting, carrying, pushing or pulling of loads)

It is unlawful to make pregnant women carry out tasks which require considerable physical effort in the three months before confinement.
Labour Code §151(e)

» Work involving exposure to biological, chemical or physical agents

Not expressly prohibited.
Labour Code

» Working requiring special equilibrium

Not expressly prohibited.
Labour Code

» Work involving physical strain (prolonged periods of sitting, standing, exposure to extreme temperatures, vibration)

Not expressly prohibited.
Labour Code

NON-DISCRIMINATION AND EMPLOYMENT SECURITY


Anti-discrimination measures

It is unlawful to advertise a job in any form specifying gender, among other things, as a prerequisite to fill the post, except where the particular nature of the job requires a person with specific characteristics. Similarly, no distinction shall be made for purposes of employment between single women and those who are married and/or have family responsibilities.
Labour Code §151(a)
Constitution of the Republic of Guatemala §102(k)

Prohibition of pregnancy testing

It is not prohibited.
Labour Code

Protection from discriminatory dismissal

It is forbidden to dismiss female workers during pregnancy or breastfeeding period. Except by a justified reason motivated on a serious fault regarding the duties of the female employee.
In this case the employer shall obtain authorization from a Labour Judge.
If the employer does not fulfilled the previous obligation and dismiss the female employee, she is entitled to claim from Labour Judges the reinstatement to her job.
Labour Code

Burden of proof

The employer has the burden of proof in case of dismissal based on a serious breach of duties by the pregnant female employee or breastfeeding employee.
The employer shall obtain previous authorization from the Labour Judge and to prove the fairness of the reason to dismiss the female employee.
Labour Code §151(c, d)

Guaranteed right to return to work

The employer may not dismiss women workers during pregnancy or nursing, as they shall be immune from dismissal except for just causes stemming from a serious violation of the obligations laid down in their contract.
Labour Code §151(c, d)

Results generated on: 20th April 2014 at 00:18:57.
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