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 suffers 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 suffered a miscarriage

Non conversion to cash:  If the employee does not avail of the paternity leave, this benefit 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 benefit is applicable to the first four (4) deliveries of the spouse of the employee with whom he is cohabiting.

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45 thoughts on “Rules on Paternity Leave (RA 8187)

  1. separated dad

    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 don’t believe in the sanctity of marriage? or what if the child has a father who can’t be married again for the father has been married once? —female can acquire maternity leave even unwed why can’t male do so? — separated dad

    1. Christine Florido Post author

      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 different 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 differences in both scenarios. I hope this satisfies your questions.

  2. new dad

    does RA 8187 apply for individuals working as consultants for a certain company? it is stipulated in my 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?

    1. Infomagnate Post author

      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.

      1. Mako F

        Ma’am, just to be clear, Paternity leave benefit 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 benefit?

      2. Atty. Post author

        Mako F: Yes, that’s correct. But the employee must notify the employer of the wife’s pregnancy and expected due date to avail of this benefit.

  3. new dad

    may i ask, is the difference 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 difference 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.

    1. Attorney Post author

      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 fixed term or period. The contract is often renewed after the expiry. The difference 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 specific 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 specifically say so.

  4. pat

    I can’t find 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 ?

    1. Atty Post author

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

  5. Hydra

    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!

    1. Atty Post author

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

  6. nic

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

    1. Atty. Post author

      Nic: Generally, there is only an application for paternity leave that must be filed 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.

  7. rL

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

    1. Atty. Post author

      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.

  8. Rolghie

    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!

    1. Atty. Post author

      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 benefits for humanitarian reasons. I hope this helps.

  9. Ariane Alaman

    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 benefits on its own) ….

    1. Atty. Post author

      Ariane: The Paternity leave is not a cash out benefit unlike the maternity benefit. Before the child is born, the father notifies 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 suffering 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.

  10. Francis A*****

    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 find contradicting what I read somewhere else…Please read the ff: “The paternity benefit 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 benefit must be availed of not later than 60 days after date of delivery.” Now, I’m confused. How do you think I can verify this information? Thanks so much.
    Limitation

    1. Atty. Post author

      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 clarifies the issue.

  11. emy v*******

    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 file the notification of the wife’s 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.

    1. Atty. Post author

      Emy: Paternity leave is a benefit 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 benefit like the maternity benefit, no amount is actually disbursed but the employee on paternity leave is allowed a paid leave. This means, he will not suffer 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.

      1. emy v********

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

      2. Atty. Post author

        Emy: Ordinarily no, unless your service agreement specifically states that the company bears the costs of paid leaves and legal benefits (such as the paternity leave). Service agreements are similar to outsourcing arrangements– the cost-benefit 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.

  12. Ellen A.

    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 first born? The first was born 1997 but for any reason nobody informed or notified him regarding paternity leave at that time. By the way when was paternity leave became a law?

    1. Atty. Post author

      Ellen: the Paternity leave law was passed in 1996 and took effect in 1997. The wordings of the law is clear– it only applies to the first 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.

  13. Eduardo

    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

    1. Atty. Post author

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

  14. clay

    atty…is it working days or calendar days the law referred to?

    1. Atty. Post author

      Clay: According to the Department of Labor– “calendar days.”

  15. kix

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

    1. Atty. Post author

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

  16. Rab **********

    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 benefits?

    1. Atty. Post author

      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.

  17. Kei

    atty, what can we do if the employer hesitates to provide paternity benefit? where can we file complaint? My husband’s employer had been granting paternity benefits 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

    1. Atty. Post author

      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 benefit. Make sure that you read the company policy on paternity check issuance carefully to determine if your husband’s 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 benefit was granted consistently for many years then it MAY be possible to claim it as a legal benefit in the appropriate case in the Department of Labor. (Ordinarily, the only legal benefit relating to new fathers is the Paternity Leave which is not a cash benefit but a leave privilege to enable the new father to take care of the newborn and the mother)

  18. myla camacho

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

    1. Atty. Post author

      Myla : The paternity leave is not a cash benefit 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.

  19. Jois

    my husband’s 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 file for paternity leave? Another thing po, 2 weeks before I gave birth, sabi sa agency nila na wala na raw paternity leave ang SSS…is that true?

    1. Atty. Post author

      Jois: It is the employer’s obligation (not the SSS) to grant paternity leave. Paternity leave is not a monetary or cash benefit 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 file 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 file the necessary forms to update his status at the SSS. I hope this helps.

  20. Irish

    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 file his paternity leave, he was told that he’s not yet allowed to file it since wala pa sya isang taon sa agency nila. Tama po ba yun?

    1. Atty. Post author

      Irish: For as long as he’s 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 first four deliveries, he applied for the leave according to the company rules,etc. Please see the other rules here.

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