Extending the contract until delivery - what does it involve?
It is the employer's responsibility to extend the contract until delivery. An employee whose contract ends and who is pregnant should provide the employer with a certificate from a doctor confirming her condition. However, not always such a certificate obliges the employer to continue employment until the end of pregnancy. See the article to learn more about this form of contract extension.
Extension of the contract until delivery
The provisions on extending the contract until the time of delivery are regulated by the Labor Code.
In art. 177 § 1-5 of the Labor Code provides information on the situations in which the employer is obliged to extend the contract of a pregnant employee and when it is not covered by it.
The employer may not terminate or terminate the employment contract of a pregnant employee or employee on maternity leave.
The extension of employment until the day of delivery is subject to:
a fixed-term employment contract,
an employment contract concluded for the duration of a specific job,
an agreement concluded for a trial period exceeding 1 month, which would be terminated after the third month of pregnancy (Article 177 § 3 of the Labor Code).
The employer is also obliged to extend the contract of an adolescent employee employed for a specified period of time for apprenticeship. If the employee presents a relevant certificate from a doctor, and the termination of the contract would fall after the third month of pregnancy, then her contract should be extended until the day of giving birth.
When is an employer not required to extend employment?
The employer is not obliged to extend the employment of a pregnant employee who was employed for:
a contract for a trial period not exceeding 1 month,
a fixed-term contract to replace another employee,
an employment contract (with notice), but only in the event of bankruptcy or liquidation of the workplace.
The above-mentioned forms of employment allow the employer not to renew the contract regardless of the duration of pregnancy, i.e. even after the 12th week of pregnancy. An employee whose contract ends before the 12th week of pregnancy may also expect that the employer will not renew the contract without being obliged to do so. Applies to:
contracts for the duration of specific work,
contracts for a trial period of more than 1 month.
If there is no possibility of employing a pregnant employee in a different position, her benefits are paid, as specified in separate regulations. The period of receiving these benefits should be included in the period of employment.
It should be remembered that the above regulations also apply accordingly to an employee - a father who is raising a child during the period of maternity leave.
The employment contract does not have to be extended also if the pregnant employee is employed on the basis of a civil law contract (contract of mandate or contract for specific work). These contracts are governed by the provisions of the Civil Code, the provisions of which do not protect pregnant women.
The obligation to extend employment does not apply in the case of employing a trainee who is undergoing an internship on the basis of a referral from the employment office. The employer does not have to extend the internship's contract, even if she is pregnant on the day the internship ends. The provisions of the Labor Code do not apply to this type of employment, as the trainee is not in an employment relationship with the employer.
How do I count the term of three months of pregnancy?
The provisions of the Labor Code do not specify how to calculate the term of three months of pregnancy. The judgment of the Supreme Court of 5 December 2002 (file reference number I PK 33/02, OSNP 2004/12/204) is the interpretation in this matter. The court stated that: "The third month of pregnancy (Art. 177 § 3 of the Labor Code) is calculated in the lunar months (28 days) equal to". According to the court, in relation to pregnancy, medical terminology should be used, where the advancement of pregnancy is determined in the lunar months, and each month has 28 calendar days, the duration of pregnancy is 10 lunar months, i.e. 280 calendar days.
What document confirms the extension of the contract until delivery?
The extension of a fixed-term employment contract due to pregnancy is automatic and there is no obligation for either party to take any action on this account. In practice, the employer most often draws up a written notice for the employee, which includes the date of submitting the pregnancy certificate, the date on which the contract should expire and an assurance that it will be extended until the day of delivery. The last day of work in the event of extending the contract until delivery is the date of childbirth, i.e. the first day of maternity leave.
Extension of the contract until delivery and the limits of fixed-term contracts
Extending the contract until childbirth does not necessitate concluding an annex or signing a new contract, and thus will not violate the limit of the number of fixed-term contracts concluded with an employee, even if the contract ending during pregnancy is the third contract, such as has a contract with your employer. However, what if the extension of the contract until delivery will result in exceeding the time limit, i.e. 33 months of employment under fixed-term contracts? Well, this does not mean transforming the contract into a contract for an indefinite period, because the extension is caused by the application of the mandatory provisions of the Labor Code, and not the result of the parties to the employment relationship, especially since this provision includes the extension of the contract, but only until the delivery, that is, the last day of the contract is the day of childbirth.