On November 24, 2022, Law No. 21.510 was published in the Official Gazette, which temporarily extends postnatal parental leave.

Specifically, the aforementioned law provides as follows:

1. The workers who are using the postnatal parental leave referred to in Article 197 bis of the Labor Code, and whose termination occurs between October 1 and December 30, 2022, shall have the right to request its extension, after its termination, for the care of the child.

The decision of the workers to exercise their right to extend their parental postnatal leave or to return to work at the end of their leave, must be communicated in writing by e-mail or registered letter to the employer at least 5 working days before the end of the leave, with a copy to the respective Labor Inspection.

The omission of the communication on the part of the worker will be understood as a decision to extend the respective postnatal parental leave.

1. In accordance with the above, workers may choose to:

a. Reincorporate to their functions, and the employer must send the background information to the entity paying the subsidy for the respective administrative purposes, within three working days from the date of the communication.

b. Extend her postnatal parental leave, which must be exercised on a full-time basis and be effective from the day following the end of the postnatal parental leave until December 31, 2022.

1. If the worker who, complying with the requirements of this law, is on medical leave at the time of its publication, may only request this extension once the term of such leave has expired.

2. In the event that both parents have taken postnatal parental leave, either of them, at the choice of the mother, may make use of this extension.

3. There are two other hypotheses in which the extension is applicable:

a. If the worker has completed his or her postnatal parental leave and returned to work between October 1, 2022 and the entry into force of this law, and would like to take advantage of the benefit of the extension and subsidy of his or her postnatal parental leave.

b. If the worker had made use of his or her right to extend his or her parental postnatal leave provided for in Law No. 21.474, and that as of September 30, 2022 has not completed the total of 60 continuous days provided for in said law. In such case, she may make use of the remaining days until completing the 60 days referred to in all events, until December 31, 2022.

In these cases, the worker must notify his or her employer by e-mail or registered letter sent within 15 days following the entry into force of the law, with a copy to the Labor Inspectorate, and his or her employer must notify the entity paying the subsidy of the worker’s decision to make use of this right, within a period not exceeding three working days following the date of receipt of the notice. Failure to do so shall be sanctioned in accordance with article 208 of the Labor Code.

1. The Law states that during the extension of the postnatal parental leave, the worker shall receive an allowance, the daily amount and form of payment of which shall be the same as that received for postnatal parental leave.

However, if the worker has returned to work for half of his or her working day, the allowance derived from this extension shall be the one that would have corresponded for the use of full-time leave.

The provisions of such article shall be applicable to self-employed workers who have made use of the postnatal parental leave.

1. The workers who make use of the extension of the postnatal parental leave shall be entitled to an extension of the leave referred to in article 201 of the Labor Code, and that the period of such extension shall be equivalent to the effective period of the extension of the postnatal parental leave, and shall be in force immediately after the end of the period of leave referred to above.

2. Finally, in the event that the postnatal parental leave of article 197 bis of the Labor Code ends after the entry into force of this regulation and the worker is unable to comply with the term established for the communication, the decision of the worker not to take the extended postnatal parental leave will be effective through the reincorporation to his/her functions, circumstance that the employer must communicate to the entity paying the subsidy within a term of three working days counted from the date of the referred incorporation. In the event that the worker decides to make use of the right to extended postnatal parental leave provided for in this law, the provisions of subsection 3 of article 1 of the law shall apply.

Consequently, the omission of the communication and the failure to return to work shall be understood as the decision to extend the postnatal parental leave under the terms established by this law.

Should you require additional information on this matter, please contact: Alfred Sherman (asherman@jdf.cl), and/or Felipe Ovalle (fovalle@jdf.cl).