Paying is caring: working parents and carers entitled to strengthened leaves under new EU Directive

On August 22, the Work-life Balance Directive[i] entered into force. It enhances current EU legislation, by addressing some of the challenges encountered by working parents and carers. It strengthens parental leave and introduces paternity leave and carers’ leave. While a margin of appreciation remains for Member states to determine what the remuneration should be for each type of leave, they should nevertheless ensure an “adequate income”, that is an income at least equivalent to the allowance due at the national level in case of sick leave. With regard to the carers’ leave, remuneration is not compulsory, but strongly encouraged.

In more details, the adopted Directive includes the following changes:

  • The introduction of paternity leave for the benefit of fathers or equivalent second parents (Art. 4). According to this provision, fathers and second parents should be entitled to a minimum of 10 working days of leave around the time of birth of the child. The paternity leave should be compensated at least at the national level of sick leave, and preferably at the national level of maternity leave (Recital 30 and Art. 4 of the Directive). At present, the length and compensation of paternity leave is regulated at the national level and varies considerably across Member States. In fact, a paternity leave of 10 or more working days, compensated at least at level of sickness leave is offered in just 14 Member States. [ii]
  • The strengthening of parental leave (Art. 5). It is estimated that 90% of fathers across the EU do not use parental leave entitlements.[iii] To maintain the balance in the care responsibilities between men and women in the first years following the childbirth, the Directive attempts to create more incentives for men to use their parental leave benefits (Recital 20).  While the Directive maintains the right of each parent to take at least 4 months of parental leave as provided for in Directive 2010/18/EU, it extends from one to two months the minimum period of parental leave which cannot be transferred from one parent to the other. Parents will also have the right to request to take the leave in a flexible way (e.g. part-time). The level of payment and age limit of the child for the benefit of the parental leave will be set by member states. However, the amount paid should be at least equivalent to what the worker concerned would receive in case of sick leave (Art. 8).
  • The introduction of the right to carers’ leave (Art.6). The Directive defines « carer » as a worker providing personal care or support in case of a serious illness or dependency of a relative (Art. 3, (c)). Each worker and carer will be entitled to 5 working days of carer’s leave per year (Art.6). The carers’ leave introduced by the Directive can be taken in periods of one or more working days per case.  Member states may use a different reference period and may introduce additional conditions for the exercise of this right. Member states also remain free to choose whether or not to provide a payment or an allowance for carers’ leave. This right is without prejudice of the right to take time off from work without the loss of employment rights on the rounds of force majeure for urgent and unexpected family reasons as provided for in Directive 201/18/EU.  At the present, Romania is the only country which does not offer this type of leave.  In addition, Denmark, Spain, Ireland, Luxembourg and the United Kingdom will have to extend the duration of carers’ leave in their national legal system in order to comply with the Directive.
  • The extension of the right to request flexible working arrangements (Art 9). The Directive extends the existing right to request flexible working arrangements to all working parents of children up to at least 8 years old and to all carers. The flexible arrangements consist in reduced working hours, flexible working hours and flexibility in place of work. The Directive also requires that the employer shall “consider and respond to request (…) within a reasonable period of time taking into the needs of both the employer and the worker”. In addition, “employers shall provide reasons for any refusal of such a request or for any postponement of such arrangement” (Art. 9, §2). While this provision leaves it to the appreciation of the employer to offer flexible working arrangements, it also entails a due diligence obligation of the employer when considering the worker’s request.  Currently, the tree forms of flexible arrangements mentioned by the Directive are only available in the United Kingdom and in the Netherlands.

Member states now have 3 years to implement the Directive.  Ultimately, it should lead to a better between work-life balance, foster an equitable sharing of caring responsibilities between women and men, and increase women’s participation to the labor market. This new piece of legislation will certainly benefit workers, but also companies, as work-life balance should result in a more productive and motivated workforce.

[i] Directive (EU) 2019/1158 of the European Parliament and of the Council of 20 June 2019 on work-life balance for parents and carers and repealing Council Directive 2010/18/EU, OJ L 188, 12 July 2019, p. 79–93.

[ii] Among which Belgium, Bulgaria, Denmark, Estonia, Spain, Finland, France, Ireland, Lituania, Poland, Portugal, Slovenia, Sweden and the United Kingdom

[iii] K. Stewart, B. Janta, Paternity and parental leave policies across the European Union, Directorate-General for Employment, Social Affairs and Inclusion (European Commission), 6 August 2018, https://publications.europa.eu/ p. 4

Angela Broux