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Brazil's not so wrong

Marília Lira de Farias title=VIPMarília Lira de Farias e Leonardo Wanderley

Maternity protection benefits in place in Brazil could be taken as an example by OECD countries.

quarta-feira, 3 de novembro de 2021

(Imagem: Arte Migalhas)

The Brazilian social security system is set forth in the constitution and is more comprehensive than it seems. The system's income distribution nature is justified by the fact that it covers health, assistance and social security, with the first two being conceived of as non-contributory institutes.

Social Security, with regard to the General Social Security System - the one that encompasses private sector workers and is managed by the INSS derives from the contributory and equity principles. This is where maternity allowance is included.

Here it is worth pointing out that maternity pay differs from maternity leave in that the former is constituted by a substitutive income payment while the latter refers solely to the period of absence from work granted to a mother before and after the birth of her child

In Brazil, this income relates to a minimum period of 120 days paid by the INSS through the employer, and mothers are guaranteed up to 28 days before the birth of the child, even if stillborn, as well as adopters, regardless of gender and parents, upon the death of the mother. The current amount of the benefit corresponds to the full remuneration of the pregnant woman.

Surprisingly, however, in developed countries (OECD) such as Canada and the United States, the benefit falls short of the Brazilian guarantee.

In Canada, with the exception of Quebec, the benefit is paid by the CPP, and has a limit of CAD595 per week. The amount can be reduced in case a family wishes to extend the leave period, and it can be granted to a child's genitor, as well as to adopters.

As for in the USA, maternity protection was not even provided for in the Constitution, nor was it in the Social Security system, so that in almost all states what exists is only maternity leave, that is, the period in which there is authorization to be absent from work with no obligation for this to be paid as provided for by the FMLA. The exception is up to the employer who may opt to offer the benefit. In addition, this situation only occurs if employees and employers are eligible for the program.

At first, one might believe that the absence or deficiency of mandatory social protection for the social risk of absence from work could be attributed to the difference in social security contributions of employees and employers, since in Canada the rate is 4.5% on employees and 4.5% on employers, while in the US the contribution rate stands in 6.2% for each.

In Brazil, this rate increases significantly since social security contributions, in general, vary from 7.5% to 14% deductible from the employee's paycheck, whose total amount withheld by the employer is 20-25% on the payroll, depending on the type of company.

It is true that these countries sustain public policies of different scopes and quality but one needs to dig deeper to identify whether these imbalances justify such large differences in rates.

From this initial consideration, having identified the discrepancy in contribution rates, we can attribute another cause to the protection asymmetry granted to mothers and fathers in the countries mentioned to a lower financial management capacity on the part of Brazilians.

On the other hand, maternity protection is enshrined in the Universal Declaration of Human Rights, endowed and proclaimed by the General Assembly of the United Nations (Resolution 217A III), in its article 25, which reads "motherhood and childhood are entitled to special care and assistance. All children, born in or out of wedlock, shall enjoy the same social protection."

In addition, the Maternity Protection Convention - C183, of the ILO, provides, among other issues, that "2. Cash benefits shall be at a level which ensures that the woman can maintain herself and her child in proper conditions of health and with a suitable standard of living." And further on, "In order to protect the situation of women in the labor market, benefits in respect of the leave referred to in Articles 4 and 5 shall be provided through compulsory social insurance or public funds, or in a manner determined by national law and practice".

C183 also provides that "the amount of such benefits cannot be less than two-thirds of the woman's previous earnings or of those earnings that are taken into account for the purposes of calculating benefits."

However, neither the United States nor Canada, despite being signatories, ratified the above mentioned convention, which may explain the non-compliance with the income of this adaptation period between mother, father and child.

In the USA, only eight states (out of 50) - California, New Jersey, Rhode Island, New York, Washington state, Massachusetts, Connecticut and Oregon - plus the District of Columbia have their own paid maternity leave schemes. In California, for instance, the benefit covers 60 percent of most employees' wages up to a maximum of USD1,300 (as of 2020) for six weeks.

For this reason, one should proudly echo the Brazilian benefits that currently go beyond the maternity allowance, given that there is recent and still in force legislation for the removal of all pregnant women from their in-person work environments, while the COVID-19 pandemic remains, with their full remuneration being maintained by the employer, regardless of compatibility with remote work.

It is discussed, however, whether this responsibility could be conferred on the INSS, which is responsible for ensuring social risk, and whether pregnant women with a complete vaccination cycle should remain away.

It is true that, in one way or another, no Brazilian benefit should be romanticized, but the intention of the Brazilian legislator cannot be demonized, but rather taken as an example by OECD countries regarding the protection of maternity and children, and legitimately compensates, or attempts to compensate, other public policy shortcomings in Brazil. After all, Brazil is not so bad.

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Atualizado em: 4/11/2021 08:10

Marília Lira de Farias

VIP Marília Lira de Farias

Advogada, especialista em direito previdenciário, sócia de Farias Coelho Advogados.

Farias e Coelho Advogados
Leonardo Wanderley

Leonardo Wanderley

Sócio do Craft Language Studio.