STF confirms maternity leave from hospital discharge of mother or baby

According to art. 392 of the CLT, the “pregnant employee is entitled to maternity leave of 120 days, without prejudice to employment and salary”. It is also worth noting that, according to the CLT, the removal would occur between the 28th day before delivery and the baby’s date of birth and, in the event of “early delivery, the woman will be entitled to 120 (one hundred and twenty) days provided for in this article”.

In April 2020, the plenary of the Federal Supreme Court confirmed an injunction, by majority vote, in ADI nº 6.327, which determined that the date of discharge of the mother or newborn is the starting point for maternity leave.

Image: Canva

In a new virtual trial, completed on October 21, 2022, the ministers decided that maternity leave in Brazil will start from the hospital discharge of the child or the mother, whichever occurs later. As a result, the preliminary injunction was converted into a judgment on the merits.

The case was presented to the Supreme Court through a lawsuit filed by the Solidarity party and has immediate effect.

When voting, Minister Fachin stated that “the omission results in poor protection for mothers and premature children, who, although they demand more attention when they are discharged, have the time spent in the hospital deducted from the period of leave.”. Carmen Lúcia and 6 other ministers accompanied him. According to the rapporteur, the measure is a way to make up for this legislative omission. If you have any queries on the subject, please contact us.


Written by Daniel Rangel and Júlia Soares

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