Paternity leave is established in Article 236 of the Substantive Labor Code and is considered a period of paid rest, which will be granted to the contributing father for the birth of his children, provided that they are the children of the spouse or permanent partner. This leave will have a duration of 2 weeks, as indicated in the second paragraph of the aforementioned article, which was modified by Law 2114 of 2021. Before the enactment of this law, paternity leave was 8 days, excluding Sundays and holidays from the computation. However, as of the entry into force of Law 2114, both Sundays and holidays will be considered for the counting of the 2 weeks, understood as a total of 14 calendar days of leave.
According to Article 236, Paragraph 5, of the Second Subparagraph, a potential increase in the duration of paternity leave by one additional week is proposed for each percentage point reduction in the unemployment rate, without in any case exceeding five (5) weeks. However, so far, said leave remains at a duration of 2 weeks, which will be counted from the birth of the baby.
It is an imperative requirement for the father to enjoy paternity leave that he holds the status of contributor, thus excluding those parents who are under the subsidized health regime. For the recognition of this prerogative to be granted in full by the health promoting entity, the affiliate must be up to date with their social security obligations. In case of having incurred arrears in payments, it is established that if the affiliate makes the full payment of the sum owed as of the date of delivery, they will have the right to the recognition of paternity leave.
Paragraph 4 of the Second Subparagraph of Article 236 of the Substantive Labor Code determines that paternity leave will be the responsibility of the EPS and will be recognized proportionally to the weeks contributed by the father during the gestation period. The amount to be granted to the worker will be calculated based on the salary on which they have contributed at the time of starting the enjoyment of the leave.
Paternity leave will be paid to the worker and is equivalent to two weeks of salary. In relation to this point, it is relevant to note that the payment will be made directly by the employer, who will subsequently make the corresponding reimbursement to the EPS, in accordance with the provisions of Article 121 of Decree Law 019 of 2012.
Paternity leave is not limited exclusively to children born of the spouse or permanent partner, but is also applicable to adopted children.
Regarding the documentation required for the recognition of paternity leave, in particular Paragraph 3 of Subparagraph 2 of Article 236 of the Substantive Labor Code establishes that the only valid document for granting paid paternity leave is the Civil Birth Registry of the minor. Said registry must be presented to the EPS within a period not exceeding 30 days following the date of the child's birth.
Through the enactment of Law 2114 of 2021, in addition to extending the duration of paternity leave from 8 days to 2 weeks, two new modalities for granting said leave were introduced, which are the following:
Shared Paternity and Maternity Leave which is a figure that allows both parents, that is, both the father and the mother, to share the last weeks of maternity leave.
Under this modality, the mother may choose to share up to six (6) weeks of her maternity leave with the father. In this case, the father will have the possibility to take an additional period of leave, which will be deducted from the time originally granted to the mother.
To access this shared leave, it is required that the mother take, at least, the first twelve (12) weeks after delivery, which are non-transferable and her exclusive responsibility. The remaining six (6) weeks may be distributed consensually between the mother and the father, by mutual agreement.
Consequently, both parents may enjoy a shared period of leave, thus providing greater flexibility in the care and attention of the newborn.
It is of utmost relevance to consider that the shared parental leave period will not be susceptible to fragmentation or simultaneity, except in those cases where there is a postpartum illness duly certified by the treating physician. In such exceptional circumstances, it will be allowed to take shared parental leave in a fragmented or simultaneous manner, as established in the respective medical certification.
Finally, the other modality created by Law 2114 of 2021 corresponds to Flexible Part-Time Parental Leave, which establishes that said figure enables both the mother and the father to modify a specific period of their maternity or paternity leave, replacing it with a period of part-time work, which will imply an extension equivalent to double the time corresponding to the period originally selected for the leave.
Article 236, in the Second Paragraph, Fifth Subparagraph, establishes that this modality of leave applies to both private sector workers and those in the public sector, and also extends to cases of premature and adopted children. It should be noted that, in the case of the mother, this leave is independent of the lactation permit.
Paragraph 5 of Article 236 of the Substantive Labor Code stipulates that, to have the right to use this modality of leave, parents must have used it before completing at least week 2 of their paternity leave. In the case of mothers, they must have enjoyed at least their first 13 weeks of leave to access this modality. In both cases, the period of this leave will be counted from the date of delivery, unless the treating physician has indicated the need to take 2 weeks of leave prior to the expected date of delivery.
The remuneration of this leave will be directly related to the salary that the worker is receiving at the time of requesting and enjoying the leave during the corresponding period. It is important to note that this modality of leave may be used by both mothers and fathers who use shared parental leave.