In circular no. 106 of 29 September 2022, INPS provided new instructions for working mothers wanting flexible maternity leave or those exercising the right to abstain from work only after childbirth. The two provisions under INPS clarification are contained in Art. 20 and Art. 16 paragraph 1.1 of the Consolidated Law on maternity, Legislative Decree no. 151/2011.
The reference legislative decree, Art. 16, forbids women’s employment two months before the presumed date of birth and three months afterwards. This is without prejudice to Art. 20 below.
In addition to this compulsory maternity leave, the legislation allowed the working mother to use flexible leave i.e., postponing work abstention from a month before the presumed date of birth and having four months’ leave afterwards. In circular no. 43/2000, the Ministry of Labour provided instructions about exercising the right to use flexible leave and stated that “the worker intending to use this option must apply to the employer and institute providing the maternity leave allowance, accompanied by the health certification(s) […] acquired during the seventh month of pregnancy.” In circular no. 152/2000, INPS stated that “the worker intending to use compulsory leave flexibility must submit an application […], accompanied by an NHS gynaecologist certification […] and the occupational physician certification” if the job was subject to health monitoring, verifying that the application was legally compliant and drawn up during the seventh month of pregnancy.
The social security institute specified that, if the health certificates were not drawn up during the seventh month of pregnancy, this would have prevented working in the eighth month meaning the flexibility inapplicability. This would lead to the standard maternity period calculation.
A few years later, the Supreme Court of Cassation, with ruling no. 10180/2013, established that, even if a worker continued to work during the eighth month and submitted the medical certificate after the seventh month, she could qualify for maternity leave until the fourth month following birth and receive the related INPS allowance. The Supreme Court stated that the five-month period option was not available and that a failure to submit the documentation within the deadline could not lead to the loss of any legal provisions.
To counter the increase in administrative and judicial appeals, INPS changed the procedure for requesting maternity leave flexibility to ensure better procedural elasticity and increase protection for working mothers.
INPS specified that the health documentation necessary for maternity leave flexibility, i.e., the National Health Service gynaecologist medical certificate and occupational physician certificate for jobs subject to health monitoring, did not have to be sent to the Institute, but the employer or customer. The worker does not have to attach the employer’s declaration about the physician responsible for workplace health monitoring not being compulsory.
INPS stated that working mothers who applied for flexibility but were denied by the institute can act to have the due allowance for the fifth month of maternity paid due to a delay in the submission of the certificates, net of any statute of limitations.
As an alternative to the standard method to access maternity leave and flexibility, the reference legislation, in Art. 16 paragraph 1.1, provides for “the right to leave only after childbirth and within five months.”
In circular no. 148/2019, INPS provided guidelines on continuing working until the presumed or actual birthdate and specified the medical documentation the worker needed to submit.
In circular no. 106/2022, INPS specified that the medical certificates that must be attached to the online application forwarded to the institute, following the circular publication, don’t need to be submitted to INPS, but are instead sent to the employer before the eighth month of pregnancy.
The instructions contained in paragraph 1.1 of INPS circular no. 148/2019 remain valid. The circular states that:
Pregnant women must send the electronic pregnancy certificate to INPS through the NHS physician or physician acting under an NHS agreement using the electronic channel provided for by INPS circular no. 82/2017.