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El Salvador - Maternity protection - 2011


LAST UPDATE

16 November 2011

SOURCES


Name of Act

Law-Decree No. 1263 promulgating the Social Insurance Act, 3 December 1953 (Ley de Seguridad Socia;l Diario Oficial No. 226, 11 December 1953, p. 8725), as amended up to Decree No.45 of 30 June of 1994.

Name of Act

Executive Decree No. 37 issuing regulations for applying the social security system, 10 May 1954 (Reglamento para la Aplicacion del Regimen del Seguro Social) Diario Oficial No 88, 12 May 1954, p. 3688), as amended up to Executive Decree n° 74, of 31 May 2010.

Name of Act

Decree No. 15 promulgating the Labour Code (Codigo de Trabajo Diario Oficial No. 142, 31 July 1972, pp. 7062-7124) of 23 June 1972, as amended up to Legislative Decree n° 839, of 26 March of 2009.
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Name of Act

Legislative Decree No. 38 containing the Political Constitution of El Salvador (Constitucion Politica de El Salvador; Diario Oficial n° 234 Tomo: 281 Publicación 16/12/1983) of 15 December 1983, as amended up to Legislative Decree n° 36 of 27 May of 2009, (Diario Oficial n° 102, Tomo 383) of 4 June 2009.

MATERNITY LEAVE


Scope

The enjoyment of paid maternity leave before and after confinement is a constitutional right and therefore shall apply to all female workers in El Salvador.

The maternity protection provided by the Labour Code applies to all female workers in in the private sector, and to all female workers working for the State, the Municipalities, the Autonomous and Semi-Autonomous Official Communities. However, the provisions of the Labour Code do not apply when the labour relations are between the State, the Municipalities, the Autonomous and Semi Autonomous Official Communities and its female workers have a public character and is based on an administrative act.
Labour Code Art.2,309
Political Constitution Art.42

Qualifying conditions

The worker must provide her employer with a medical certificate stating that she is pregnant and giving the expected date of confinement.
Labour Code Art.310

Duration


Compulsory leave

The legislation provides a compulsory leave of six weeks after confinement.
Labour Code Art.309

General total duration

The employer is obligued to enjoy twelve weeks of maternity leave, six of which must be taken after confinement.
Labour Code Art.309
Historical data (year indicates year of data collection)
  • 2009: Twelve weeks, six of which must be taken after confinement. The worker must provide her employer with a medical certificate stating that she is pregnant and giving the probable date of confinement.
  • 2004: Twelve weeks
  • 1998: Twelve weeks
  • 1994: Twelve weeks

Extension

If confinement takes place after the date expected, the leave shall be extended to the actual date of confinement, and the amount of benefits for compulsory postnatal leave shall not be reduced.
Labour Code Art.309

Leave in case of illness or complications

In the case of illness which, according to a medical certificate, has occurred as a result of pregnancy, the worker shall be entitled to supplementary prenatal leave, the length of which shall be determined by regulations. If, after the period of maternity leave has expired, the worker provides a medical certificate stating that she is not able to return to work, then she shall be granted the leave necessary for her recovery, during which the employer shall maintain her job.
Labour Code Art.309, 312

RELATED TYPES OF LEAVE


Parental leave

Relevant provisions on parental leave have not been identified.

Paternity leave


Scope

The Labour Code states that the employer shall provide an emergency family leave to all workers for fulfill "the obligations which objectively require their presence". Express references to paternity leave have not been identified, however it seems that paternity is justifiable reason for claim this paid leave.

The provisions of the Labour Code apply to the labour relations between the employers and the employees in the private sector, and the labour relations between the State, the Municipalities, the Autonomous and Semi Autonomous Official Communities and its workers.

However, the provisions of this Code do not apply when the labour relation between the State, the Municipalities, the Autonomous and Semi Autonomous Official Communities and its workers, it has a public character and is originated by an administratif act. To this respect, the Social Security Institute of El Salvador is considered an Autonomous Official Institution.
Labour Code Art.29.6(b), 2

Length

The lenght of such emergency leave has the duration needed for address the emergency, although the employer shall only be obligated to pay the worker the equivalent to two days the ordinary salary per month and up to a maximum of one year.
Labour Code Art.29.6(b)

Adoption leave

Relevant provisions on adoption leave have not been identified.

RIGHT TO PART-TIME WORK

Relevant provisions on right to part-time work have not been identified.

CASH BENEFITS


Maternity leave benefits


Scope

The Social Security Scheme covers all the workers dependant on an employer,in the public and private sector, independently of the labour relationship and the kind of remuneration. Therefore, all female employees are entitled to enjoy the Social Security benefits, with the sole exception of those workers who earn over a fixed sum established on specific regulations.
Law-Decree No. 1263 promulgating the Social Insurance Act Art.3

Qualifying conditions

To be eligible for maternity cash benefits, a woman must have six months of employment with the same employer before the expected date of birth. The worker must also have made 12 weeks of contributions paid in the 12 months before the expected date of birth.
Labour Code Art.311
Executive Decree No. 37 issuing regulations for applying the social security system Art.25

Duration

During the 12 weeks of maternity leave, the worker is entitled to enjoy benefits.
Labour Code Art.309

Amount

The amount of maternity benefits is 75%of the basic wage for the normal duration of maternity leave (12 weeks).
Labour Code Art.309
Executive Decree No. 37 issuing regulations for applying the social security system Art.26
Historical data (year indicates year of data collection)
  • 2009: Seventy-five per cent of the basic wage for the normal duration of maternity leave (12 weeks).
  • 2004: Seventy-five percent
  • 1998: Seventy-five percent
  • 1994: Seventy-five percent

Financing of benefits

The Labour Code provides that the employer shall cover the costs of maternity leave benefits in an amount equivalent to the 75% of the basic salary. The Social Security shall gradually cover the risks that workers are exposed for maternity related reasons.
Labour Code Art.309
Law-Decree No. 1263 promulgating the Social Insurance Act Art.2(c)
Historical data (year indicates year of data collection)
  • 2009: Social Security for insured workers, otherwise the employer must pay.
  • 2004: Social security
  • 1998: Social security
  • 1994: Social security

Parental leave benefits

Relevant provisions on parental leave benefits have not been identified.

Paternity leave benefits


Scope

The Labour Code states that the employer shall provide an emergency family leave to all workers for fulfill "the obligations which objectively require their presence". Express references to paternity leave have not been identified, however it seems that paternity is justifiable reason for claim this paid leave.

The provisions of the Labour Code apply to the labour relations between the employers and the employees in the private sector, and the labour relations between the State, the Municipalities, the Autonomous and Semi Autonomous Official Communities and its workers.

However, the provisions of this Code do not apply when the labour relation between the State, the Municipalities, the Autonomous and Semi Autonomous Official Communities and its workers, it has a public character and is originated by an administratif act. To this respect, the Social Security Institute of El Salvador is considered an Autonomous Official Institution.
Labour Code Art.29.6(b),2

Duration

The lenght of such emergency leave has the duration needed for address the emergency, although the employer shall only be obligated to pay the worker the equivalent to two days the ordinary salary per month and up to a maximum of one year.
Labour Code Art.29.6(b)

Amount

The amount due to paternity shall be the equivalent to two days the ordinary salary per month.
Labour Code Art.29.6(b)

Financing of benefits

It is obligation of the employer to assume the cost of the emergency family leave.
Labour Code Art.29.6(b)

Adoption leave benefits

Relevant provisions on adoption leave benefits have not been identified.

MEDICAL BENEFITS


Pre-natal, childbirth and post-natal care

Insured workers are entitled to enjoy, in the form and duration provided by the regulations, to the following medical benefits; medical, surgical, pharmaceutical, dental, hospital and laboratory services, as long as they are necessary, and to enjoy the necessary pre-natal, childbirth and post-natal cares.
Law-Decree No. 1263 promulgating the Social Insurance Act Art.59(a)

Financing of benefits

Salvadorian Social Security Institute.
Law-Decree No. 1263 promulgating the Social Insurance Act Art.2c), 59(a)

BREASTFEEDING


Right to nursing breaks or daily reduction of hours of work

The Labour Code provides that all female workers shall be entitled to enjoy up to one hour per day to breastfeed their children, which may be split into two periods of half an hour each, at the request of the worker. To this respect, nursing breaks shall be calculated as time worked.
Labour Code Art.312

Remuneration of nursing breaks

Nursing breaks shall be calculated as time worked and remunerated as such.
Labour Code Art.312

Transfer to another post

Relevant provisions on "transfer to another post" have not been identified.

Nursing facilities

The Constitution provides the obligation of employers to install and maintain rooms, cots and areas for the children of workers.
Political Constitution Art.42

HEALTH PROTECTION


Arrangement of working time

Relevant provisions on "arrangements of working time" have not been identified.

Dangerous or unhealthy work


Particular risks


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

Pregnant women may not undertake work requiring considerable physical exertion incompatible with their condition. It is assumed that any work requiring considerable physical exertion is incompatible with their condition after the fourth month of pregnancy.
Labour Code Art.110

NON-DISCRIMINATION AND EMPLOYMENT SECURITY


Anti-discrimination measures

Express references to discrimination measures based on pregnancy or any related cause have not been identified.
However, the legislation provides that any discrimination motivated by reasons of gender shall be prohibited.
Labour Code Art.30(12)

Prohibition of pregnancy testing

The employer is prohibited from demanding that a female worker undergo a pregnancy test, nor to demand medical certificates of this nature, as a requirement for getting the job.
Labour Code Art.30(13)

Protection from discriminatory dismissal

From the start of a worker’s pregnancy until the end of her postnatal leave, dismissal shall not lead to the termination of her contract, except when the cause of dismissal predates the pregnancy; however, even in such cases, the dismissal shall not take effect immediately after the end of maternity leave.
Labour Code Art.113

Guaranteed right to return to work

The preservation of the employment during maternity is a constitutional right.
Political Constitution Art.42

Results generated on: 01st November 2014 at 07:14:48.
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