On July 24, 2024, Cabinet Resolution No. 64 of July 23, 2024 (hereinafter Resolution 64) was published in the Official Gazette, which lifted the National State of Emergency, decreed as a result of the COVID-19 Pandemic.
As a result of this, and based on what was established in article 7 of Law 238 of September 15, 2021 (Law 238), which extended the scope of maternity jurisdiction to the father of the minor, the jurisdiction was extended to fathers. It was supposed to come into force on July 25, 2024. However, Law 439 of June 17, 2024, was subsequently published in the Official Gazette on July 25, 2024, which modified article 7 of Law 238, regarding its date of entry into force, providing that Law 238: “will come into force on January 1, 2024”, which has, in fact, given it retroactive effect, which will surely be the subject of subsequent analysis from the labor and constitutional point of view.
Let us remember that Law 238 developed a jurisdiction to apply to all fathers, in the public or private sector, in the event of the death of the mother during childbirth or within 12 months thereafter, or when the woman, in a state of pregnancy or within 12 months after childbirth, does not have a formal job.
According to this rule, the father cannot be dismissed from his job when any of these conditions are met, during pregnancy and for up to one year after childbirth, except in the cases and in accordance with the special formalities provided for in the law.
The rule contemplates the cases in which said jurisdiction will be suspended, as well as the requirements and documents that must be presented so that the father can enjoy the scope of maternity jurisdiction, either because the mother does not work or in the event of the mother’s death.
It also provides that the employer must grant a vacation period of fifteen days, after any period of mourning established in the Internal Work Regulations of the company, in the event of the death of the mother during childbirth or in the following days or months.
