Maternity leave in cases of “highly premature” birth (Legislative Decree 80/2015)

Maternity leave means the worker’s compulsory absence from work for the period preceding and following the confinement. During these months the employer cannot, there is a ban on employing women.

Articles 2 and 4 of Legislative Decree no. 80 of 15 June 2015, n. 80, published in the Official Gazette of 5.6.2016, intervene on the discipline of maternity leave, modifying the provisions on the subject, respectively, by articles 16 and 26 of Legislative Decree no. 151 of 2001, in order to guarantee greater protection to mothers in the event of premature births.

The Fondazione studi dei consulenti del lavoro, in its circular 17/2015 focused on Legislative Decree no. 80/2015, mainly examines the following aspects of the related new discipline:

  • greater flexibility of maternity leave;
  • parental leave up to 12 years;
  • parental leave for male and female employees;
  • calculations of the period of leave.

Calculation of maternity leave in the event of premature birth

The Circular 17/2015 of the Studies Foundation highlights in particular the fact that, in the case of an earlier than expected birth, the days lost recalculated on the basis of the date of the actual birth, are added to the tail end of the five months which, in the case of a highly premature birth, can be extended up to seven months.

Here is an example made on the website of the Labor Consultants:

  • Estimated date of delivery: March 10, 2015.
  • Estimated compulsory leave starts: 10 January 2015.
  • Effective delivery: 02 January 2015 .
  • Start of compulsory leave recalculated based on actual confinement: 2 November 2014.
  • Days before the start of compulsory leave recalculated not taken: 2 months (2 November 2014-2 January 2015).
  • End of compulsory theoretical leave period: 10 June 2015.
  • Effective compulsory leave deadline: 10 August 2015 (I add at the end of the 3 months following the presumed birth the two months prior to the actual birth not taken).
  • Total length of leave: 7 months and 8 days.

This is good news for new mothers who have given birth to a premature baby, who, since last year, have been recognized more time to take care of their baby, compared to the ordinary discipline that provides for a limit of 5 months.

Scope of the legislative decree

Legislative Decree 80 of 2015, in force on 25 June 2015, affects both employees and those enrolled in the separate management and applies to deliveries occurring after that date.

Recalculation of the period of leave for premature birth

Only in recent weeks, the INPS has announced that it is possible, where maternity leave for “highly premature” birth has been determined on the basis of the old discipline, to make a request for recalculation taking into account the days not initially counted.

INPS has also clarified that compensation is possible only where the worker, in the additional days eligible for compensation, has actually been absent from work without interruption (using, for example, holidays or parental leave).

With its circular no. 69 of 28 April 2016, INPS provided instructions on maternity allowance for days in addition to the 5 months recognized in cases of very premature birth.

The application to obtain the recalculation of the period of leave – referring to the protocol number of the maternity application already sent – must be submitted, directly to the competent INPS office, or forwarded to the Institute itself by registered letter with return receipt or with a PEC (certified e-mail).

Katherine Johnson, M.D., is a board-certified obstetrician-gynecologist with clinical expertise in general obstetrics and gynecology, family planning, women’s health, and gynecology.

She is affiliated with the Obstetrics and Gynecology division at an undisclosed healthcare institution and the online platform,

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