In 2022, a new type of paid leave in favour of the father for childcare until the child’s attainment of 8 years of age has been introduced in the Labour Code (Art. 164c). This is an individual right of the father (the adoptive father), which reflects the European measures to achieve equality between parents in balancing work and family life, including in raising a child. Below, we briefly discuss the more important specifics and some practical issues related to the use of the new type of leave.
The leave is in the amount of two calendar months and may be used in full or in parts.
The wording of the law is not entirely clear and raises the question of how exactly the leave will be accounted for when an employee uses it in parts. The reason is that the duration is defined in months and not in working or calendar days. In this respect, some experts in the Ministry of Labour and Social Policy are of the opinion that where the employee has used the leave in parts during different calendar periods, one calendar month of leave should be accounted for every 21 working days of leave used by the father. This concept seems logical and is consistent with the general rules for calculating the length of service, according to which a full month of service is accounted when the employee has worked at least 21 working days for the respective calendar month. However, there is still no court and/or administrative case law established to provide a final answer to this question.
The aim of the legislator is to guarantee an individual right to leave for the father when he has not used leave transferred by the mother (adoptive mother) related to raising a child, namely:
In case the father has used any of the above types of leave, he is entitled to use the leave under Article 164c in the amount of the difference between two calendar months and the duration of the transferred leave used (if any).
The law sets additional restrictions under which the father may not use the leave under Article 164c, for example in case of the child's death, deprivation of parental rights, placement of the child in a foster family, etc.
In this regard, when the father applies for the leave, he must declare to his employer that the above circumstances do not exist and that he has not used any leave transferred from the mother or has used such for less than two calendar months.
In order to use the leave, the employee must submit a written request in a statutory form to the employer at least 10 days in advance, specifying the calendar period for which he wishes to use the leave.
The employer is obligated to permit the use of the leave when the legal preconditions are present. If the father uses this leave for the first time, the employer must additionally issue a Certificate for Use of the Leave in a statutory form wherein the amount and period of the used leave must be recorded. This certificate must be kept with the employer and provided to the employee upon termination of employment in order to ensure that the remaining leave entitlement of the father is properly documented and tracked when he changes his employer.
In the event that the father is not entitled to the leave, the employer does not permit the use of the leave and must provide the reasons for the refusal in writing within 7 days, indicating the specific circumstance or circumstances which constitute a legal obstacle for its use.
All documents relating to the use and permission of the leave under Article 164c must be kept in the employee's personal file. In addition, the employer must keep a separate book for the accounting of such leave where the details of the employees and the period during which the leave was used must be recorded.
The Social Security Code provides that an employee who has 12 months length of service is entitled to a monetary compensation for the period during which the leave was used.
The compensation is in a fixed amount pursuant to the State Social Security Budget Act. For 2024 the amount of the compensation is BGN 780. These provisions also give rise to difficulties in calculating the amount of the compensation, because it is not entirely clear whether this amount is for the maximum duration of the leave (two months) and how the amount should be determined when the leave is used in parts. In view of the above, it is logical that when only part of the leave was used, a daily amount of the compensation should be determined and calculated on the basis of the days of leave used in the respective month.
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