Dear Atty. Vlad,
I was hospitalized earlier this year because I needed to undergo a total abdominal hysterectomy. I was on leave for a total period of one-and-a-half months as advised by my physician. I had to be on bed rest after my operation.
Then, in June of this year, I had another operation, a mastectomy, and was on leave for another month, because I had to be on bed rest again after the operation as recommended by my doctor.
My employer, however, did not pay me anything during the one month I was on leave for the second time, because, according to him, I already used up my sick leave and emergency leave credits. Please advise me on my rights if any. Thank you.
Diana
Dear Diana,
You mentioned that you had two operations/surgeries within the same year for a gynecological disease: A total abdominal hysterectomy, and then a mastectomy.
According to The Magna Carta of Women (Republic Act 9710), hysterectomy and mastectomy are gynecological surgeries entitled to a special leave benefit of up to two months.
Section 18 of RA 9710 provides that a woman employee having rendered continuous aggregate employment service of at least six months for the last 12 months shall be entitled to a special leave benefit of two months with full pay based on her gross monthly compensation following surgery caused by gynecological disorders.
Department of Labor and Employment (DoLE) Department Order (DO) 112-11, Series of 2011, or Guidelines Governing the Implementation of the Special Leave Benefits for Women Employees in the Private Sector, further provides:
Section 2. Conditions to entitlement of special leave benefits. — Any female employee, regardless of age and civil status, shall be entitled to a special leave, provided she has complied with the following conditions:
(a) She has rendered at least six months continuous aggregate employment service for the last 12 months prior to surgery;
(b) She has filed an application for special leave in accordance with Section 3 hereof.
(c) She has undergone surgery due to gynecological disorders as certified by a competent physician.
In turn, Section 3 of DoLE DO 112-11 provides that the employee shall file the application for the leave within a reasonable time from the expected date of surgery, or within such period as may be provided by company rules/policies or other employment agreement. In case of emergency medical procedures, prior application for the leave is not necessary, provided the employer shall be notified verbally or in writing within a reasonable period of time and provided further that after the surgery or recuperating period, the female employee shall immediately file her application using the prescribed form.
Hence, as long as you rendered at least six months continuous aggregate service within the 12-month period prior to your surgeries, you can apply with your employer for the Special Leave Benefit for Women under RA 9710. However, the special leave is only up to two months per year (according to DoLE DO 112-A, Series of 2012, Amending the Guidelines on the Implementation of the Special Leave Benefit for Women Employees in the Private Sector). As such, your total leave of two and a half months for the year cannot be covered in its entirety, and you may charge the exceeding half month to your other leave credits, if any. Otherwise, the excess half month will be considered as unpaid leave.
When you submit your application, include therein, the certification of a competent physician as to the required period of recuperation, in accordance with DoLE DO 112-A, Series of 2012, as this would be the controlling document to determine the period of leave with pay that will be allowed.
I hope that I was able to help you based on what you shared to me.
Atty. Vlad del Rosario