The Supreme Court analyzed the case of civil and military public servants in the State of Espírito Santo; Gilmar Mendes was the rapporteur
On September 13, the STF (Federal Supreme Court) granted civil and military civil servants in the State of Espírito Santo a 180-day leave in cases of solo paternity, both biological and adoptive. The decision was taken in ADI (Direct Unconstitutionality Action) 7518.
The STF plenary also understood that, for same-sex couples of female public servants, one of the mothers will be entitled to maternity leave and the other to a period equivalent to paternity leave. Temporary or commissioned civil servants are also entitled to maternity leave.
The action is one of more than 25 actions proposed by the PGR (Attorney General’s Office) to ensure the standardization of the parental protection system and eliminate disparities between States.
The rapporteur, Minister Gilmar Mendes, also concluded that the provisions limit the right to adoptive leave, creating a distinction between biological and adopted children. According to the judge, the expression “only one employee will be entitled to leave” and “only one of them will be entitled to the license” can lead to an unconstitutional understanding, because the Supreme Court understands that any rule or interpretation that creates a differentiation between biological and adoptive bonds is incompatible with the Federal Constitution.
According to the minister, the STF’s new understanding of parental leave honors equality between children and women’s rights, decoupling maternity leave from the biological condition of a pregnant woman. The current guidance privileges other important values, such as the best interests of the child, equality in the treatment of adopting women and adopted children and the multiple forms of family protected by the Constitution.
Gilmar said, however, that in the case of adoption by a couple made up of civil or military employees of the State, both will be entitled to the license, albeit for different periods: one will have the adopting license of 180 days and the other will enjoy the license- paternity.
The PGR’s request for the free sharing of parental leave, that is, for the couple to decide between themselves how to use it, was denied. For Gilmar, sharing requires clear guidelines for managing the period of absence of its employees and involves additional investments, personnel readjustment and social security consequences.
Finally, the minister denied the PGR’s request to set a period of 180 days of parental leave, regardless of the relationship (statutory or CLT). Gilmar stated that it is exclusively up to the Union to legislate on labor law.
Minister Alexandre de Moraes and Minister Cármen Lúcia were defeated. For both, the granting of maternity or adoptive leave, in the case of a civil servant couple, must occur under equal conditions between the 2 spouses for the same period of 180 days.
With information from STF.
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