Philippine Legal Counseling

Legal tips and updates for everyday living by Atty. Christine Florido

Rules on Paternity Leave (RA 8187)

Male employees in the private sector are entitled to a paternity leave under the following conditions:
The new father must be legally married to the mother of the newborn child
He is an employee at the time of birth or miscarriage
He is cohabiting with his wife at the time she gives birth or suers a miscarriage
He has applied for paternity leave within a reasonable time from the expected date of delivery of
his pregnant wife or within such period as provided by company rules or by collective bargaining
agreement
His wife has given birth or suered a miscarriage
Non conversion to cash: If the employee does not avail of the paternity leave, this benet is not
convertible to cash nor is it cumulative.
Usage AFTER delivery: While application of paternity leave must be made before the delivery, it can
only be used AFTER the delivery of the child, unless company rules allow prior usage.
Duration of paternity leave: 7 Calendar days with full pay, consisting of basic pay and mandatory
allowances.
Limits: This benet is applicable to the rst four (4) deliveries of the spouse of the employee with
whom he is cohabiting.

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Related

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This entry was posted in Labor Law, Leaves and Holidays and tagged paternity leave, paternity leave
labor philippines, paternity leave philippines on :-)
[https://legalcounseling.wordpress.com/2010/10/03/rules-on-paternity-leave-ra-8187/] .

45 thoughts on Rules on Paternity Leave (RA 8187)

separated dad
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this would address only married fathers would be a discrimination against unmarried fathers to be
what if they prioritize the well being of the baby before thinking about the marriage? what if they dont
believe in the sanctity of marriage? or what if the child has a father who cant be married again for the
father has been married once? female can acquire maternity leave even unwed why cant male do so?
separated dad

Christine Florido

Post author

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Separated dad:
Because the law presumes that the illegitimate child is under the sole custody of the mother and that
the father is not living with the mother. The rationale is dierent for the mother who is granted
maternity leave because regardless of her civil status, a mother who has just given birth needs the
same amount of care and rest to heal and get well. Husbands are allowed paternity leave so that they
can help their wives cope with the special needs arising from taking care of a newborn at home. It is
related to the legal obligation of the husband to take care and support the wife. That kind of legal duty
does not attach to the unwed father. It is not strictly speaking discrimination but a reasonable
distinction due to dierences in both scenarios. I hope this satises your questions.

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does RA 8187 apply for individuals working as consultants for a certain company? it is stipulated in my
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contract with the employer that we are not employees,
but rather
consultants. But i do believe that

the more appropriate term to be used is contractual. does the RA 8187 applicable on our condition?
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Infomagnate
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Post author

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New dad:
The Paternity Leave is granted to ALL married male employees in the private sector, regardless of their
employment status which may be probationary, regular, contractual or project basis. So, yes. It applies
to contractual employees a well. I hope this helps.

Mako F
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Maam, just to be clear, Paternity leave benet is granted to married employees regardless of their
length of service to the company? So even if the father is only on his second month of employment, the
company has to grant him this benet?

Atty.

Post author

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Mako F: Yes, thats correct. But the employee must notify the employer of the wifes pregnancy and
expected due date to avail of this benet.

new dad
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may i ask, is the dierence between contractual employees from consultancy, we do have a contract for
a period of time to provide consultancy services. and it s stated that we are not Employees on a
contractual basis, but Consultants on a contractual basis. may i ask the dierence between the two (2)?
their basis of granting us paternal leave is on the terms Employee and Consultancy. Being consultants,
we are not entitled to it.

Attorney

Post author

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The paternity leave applies only to employees not to consultants.

Your earlier query mentioned that you were merely referred to as consultant but that you really were
contractual employees, hence the opinion that contractual employees are entitled to paternity leave.
Consultants are independent contractors, not employees, who are often hired to render advice or
provide specialized service that is not in the ordinary course of the business of the company. Examples
are PR consultants, HR consultants and marketing consultants. Their scope of work is limited by a
contract or agreement, which is why a consultant is often mistaken for contractual.
Contractual employees are those whose employment are for a xed term or period. The contract is
often renewed after the expiry. The dierence between the two is in the control that the company
engaging their services has on them. A consultant performs work using his own tools, resources, time
and methods. The contractual employee usually performs work following specic instructions of and is
subject to the disciplinary rules of the employer. So, for example, if the company prohibits moonlighting
or holding two or more employment, the contractual employee may be terminated on this ground,
while the consultant is not subject to this restriction unless the terms of his contract specically say so.

pat
:-) at :-)

I cant nd any rights for the employers to postpone the paternity leave requested by their employees
therefore, Does the Law mandate the rights to postpone leave for employers?
More, Does the law indicate the rights to return work or any protection for employee ?

Atty

Post author

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Pat:
What is the scenario or situation leading to your question?

Hydra
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What if the employee decides not to take all of the leave days allowed (e.g. he was on paternity leave
only for 2 days). Do the 5 remaining days still apply? Thanx!

Atty

Post author

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Hydra: Im not quite sure what you mean by do the 5 remaining days still apply? but the paternity
leave is not commutable to cash. If its not availed of in part or entirely, then it is my opinion that the
unused leave is forfeited.

nic
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is there any specic document needed for applying paternity leave like maternity leave?

Atty.
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Post author

Nic: Generally, there is only an application for paternity leave that must be led within a reasonable
period of time from the expected date of delivery, meaning the application must be made PRIOR to the
expected date of delivery although the paternity leave is to be used after delivery. But you should also
check with your HR or employer if there is an existing company rule on the kind of notice required. In
case of miscarriage, prior application for paternity leave is not required.

rL
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atty wala pong ibang way para maka pagle ng pat. leave kung hindi kau kasal? no exceptions?

Atty.

Post author

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Hi, RL: Right now, there seems to be no exceptions to the Paternity Leave rule requiring the father to be
married to the woman who gave birth.

Rolghie
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Hi Atty! Im the HR head of our Company, i would like to ask something regarding the paternity leave or
RA 8187; in the revised IRR issued by DOLE on March 13, 1997 they delisted abortion from the coverage
of the paternity leave. Question, how about abortion that intentionally committed by medical
practitioner in order to save the life of the mother out of a certain condition. Can the legal husband
avail of paternity leave, given the situation above? Thanks in advance! God Bless!

Atty.

Post author

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Rolghie: Your observation is correct abortion is not included in the legal provisions on Paternity Leave.
But this does not mean that the company cannot grant paternity leave as its own policy. The law is a
minimum standard employers can extend its benets for humanitarian reasons. I hope this helps.

Ariane Alaman
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gud am. May I ask is the application mechanics for paternity leave the same for maternity leave
where SSS pays them NOT the company (because the company has no leave benets on its own) .

Atty.

Post author

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Ariane: The Paternity leave is not a cash out benet unlike the maternity benet. Before the child is
born, the father noties the employer of the expected due date and the tentative schedule of the
paternity leave after the delivery. Once the child is born, the father may then use the 7-day leave
without suering any deduction for his absence. Hence, it is a paid leave. It is not convertible to cash if
the father does not use it. I hope this helps.

Francis A*****
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Thanks for the info regarding paternity leave act.but i just have one comment. I learned from your site
that it can only be used after the delivery of the child which I nd contradicting what I read somewhere
elsePlease read the : The paternity benet may be availed of before, during or after delivery,
provided the total number of days does not exceed 7 working days. For example, the employee may
take a leave of 2 days before delivery, 1 day during delivery, and another 4 days after delivery. However,
the benet must be availed of not later than 60 days after date of delivery. Now, Im confused. How do
you think I can verify this information? Thanks so much.
Limitation

Atty.

Post author

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Francis A*****: As a GENERAL RULE: the paternity leave is available after the delivery of the child with
the EXCEPTION of existing company policy or other agreement where the EMPLOYER allows the
employee to avail of the leave before the delivery. No contradiction you just have to read it in its
entirety. One is the general rule, the other is an exception. I hope this claries the issue.

emy v*******
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we contracted a Service Provider for a certain position and that employee is under the payroll of the
Service Provider Where will the contractual personnel le the notication of the wifes childbirth, to the
Service Provider or to us where she/ he is assigned, Who will pay for the 7 days paternity leave, the
Service Provider or us.

Atty.

Post author

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Emy: Paternity leave is a benet that the employer must provide if the personnel who is about to
become a father is NOT your employee but of a service provider then he should notify the service
provider who will take note of the expected due date including the tentative dates of the paternity
leave. The paternity leave is not a cash benet like the maternity benet, no amount is actually
disbursed but the employee on paternity leave is allowed a paid leave. This means, he will not suer a
salary deduction for not working on those days. But this is a matter appropriate for the employer (who
is the service provider) to consider. The service provider may just have to inform you, as a matter of
expediency, of the inclusive dates of the paternity leave.

emy v********
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is is appropriate for the Service Provider to charge the paid paternity leave to us?

Atty.

Post author

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Emy: Ordinarily no, unless your service agreement specically states that the company bears the costs
of paid leaves and legal benets (such as the paternity leave). Service agreements are similar to
outsourcing arrangements the cost-benet to the company is the absence of certain overhead
expenses associated with maintaining regular employees. While the paternity leave is between the
employer and employee, how it is treated in your agreement with the service provider is a matter of
contract. I suggest that you review the terms or let a contract lawyer check it for you.

Ellen A.
:-) at :-)

I would like to us, if the father has already 4 children and there is another newly born child, can he avail
his paternity leave if he did not avail it in his rst born? The rst was born 1997 but for any reason
nobody informed or notied him regarding paternity leave at that time. By the way when was paternity
leave became a law?

Atty.
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Post author

Ellen: the Paternity leave law was passed in 1996 and took eect in 1997. The wordings of the law is
clear it only applies to the rst 4 deliveries. The law does not mention any exceptions, so unless there
is an amendment to this law, then the reasonable interpretation would be to exclude deliveries after
the 4th child.

Eduardo
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what if the birth of my baby falls on national holiday can I still enjoy my 7 days leave after the holiday?
or it overs all including saturday and sunday in that 7 days paternity leave

Atty.

Post author

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Eduardo: the Paternity leave is 7 calendar days, unless otherwise provided in an existing CBA or
company policy as working days.

clay
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attyis it working days or calendar days the law referred to?

Atty.

Post author

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Clay: According to the Department of Labor calendar days.

kix
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atty , what if may baby was born 7 days before we got married , would i still be able to apply for a
paternity leave

Atty.

Post author

:-) at :-)

Kix: No you are not legally qualied for the paternity leave, unless your employer has a company policy
that allows it.

Rab **********
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When the 1st Wife already died (they had four children during his employment) and then the male
employee contracted a subsequent marriage, can the male employee still avail of the benets?

Atty.

Post author

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Rab: Under the terms of the Paternity Leave Act, yes, the male employee is entitled to paternity leave
provided he is legally married to the woman who is giving birth to his child and he is living with her as
well. The limit of 4 pregnancies relates to the legitimate spouse of the employee, not to the male
employee.

Kei
:-) at :-)

atty, what can we do if the employer hesitates to provide paternity benet? where can we le
complaint? My husbands employer had been granting paternity benets for several years but now
paternity checks are pending , i gave birth Sept. 4, 2011 my husband had applied for the leave and all
documents attached are valid but while we are to follow-up for the check they told us all paternity
checks are pending and much worse will be no longer provided for an unknown reason., thank u in
advance

Atty.

Post author

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Kei: Paternity checks? You mean, that instead of granting paternity leave, the company converts the
paternity leave to cash? If so, then you may have to write them formally regarding the availment of that
company benet. Make sure that you read the company policy on paternity check issuance carefully to
determine if your husbands situation is fully covered and that your husband has complied with any
conditions imposed by the company for its availment. If your husband can prove that the benet was
granted consistently for many years then it MAY be possible to claim it as a legal benet in the

appropriate case in the Department of Labor. (Ordinarily, the only legal benet relating to new fathers
is the Paternity Leave which is not a cash benet but a leave privilege to enable the new father to take
care of the newborn and the mother)

Kei
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thank you attorney!

myla camacho
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atty., just want to ask, who will pay for the paternity leave, company or sss?

Atty.

Post author

:-) at :-)

Myla : The paternity leave is not a cash benet that must be paid in case it is not used by the employee.
The employer grants it and pays the employees usual salary as if he reported for work at the time he
avails of the paternity leave.

Jois
:-) at :-)

my husbands sss status is still single and has not been updated yet by their agency. I gave an early birth
during the holy week and the 7 days-should-be-paternity leave is about to end. May chance pa po ba na
kami na ang mag-update ng status nya sa SSS from single to married, then le for paternity leave?
Another thing po, 2 weeks before I gave birth, sabi sa agency nila na wala na raw paternity leave ang
SSSis that true?

Atty.

Post author

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Jois: It is the employers obligation (not the SSS) to grant paternity leave. Paternity leave is not a
monetary or cash benet but a paid leave, meaning, your husband can be excused from work for up to
7 calendar days and still get paid his salary on those days. But to avail of this leave, he must have

informed his employer of your pregnancy and the expected dates of the availment. I suggest that he le
a paternity leave with his employer and see what happens. He can also approach the Department of
Labor and ask about his rights, in case his employer still fails to grant him a paternity leave. I also
suggest that your husband le the necessary forms to update his status at the SSS. I hope this helps.

Irish
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Hi atty. I would like to clarify this policy. One of our male employee availed the paternity leave. He is a
contractual employee and is under agency now, actually wala pa syang isang buwan sa agency na yun.
He used to be an employee of our company, pina agency na lang namin.. When he was about to le his
paternity leave, he was told that hes not yet allowed to le it since wala pa sya isang taon sa agency
nila. Tama po ba yun?

Atty.

Post author

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Irish: For as long as hes an employee of that agency meaning he performs services and receives
compensation for it, then he is entitled to paternity leave regardless of the length of his employment.
He must comply with other requirements for the paternity leave, meaning he is legally married to the
woman who gave birth to his child, the child is one of the rst four deliveries, he applied for the leave
according to the company rules,etc. Please see the other rules here.

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