The Ministry of Labor issued the Lao-Dong-Tiao-Four-1080130174 Circular of February 21, 2019 (hereinafter, the “Circular”) to point out that for parents raising two children less than three years old at the same time, the father and mother can take parental leave at the same time.
According to this Circular, the legislative objective of Article 16 of the Act of Gender Equality in Employment (hereinafter, the “Act”) with respect to the provision concerning parental leave without pay is to take into account the work rights of parents so that they can take care of their career and family at the same time since most parents still raise young children on their own. In addition, Article 22 of the same Act provides: “If the spouse of an employee is not employed, the provisions of Articles 16 and 20 shall not apply, provided that this restriction shall not apply in case of justified reasons.” The legislative reason is that if the spouse of an employee is not employed, that spouse should be able to take care of the family. Therefore, the employee certainly does not have to take leave of absence. However, in case of justified reasons, the employer still may approve the application. Therefore, this proviso is included in the legal provision. As for “justified reasons,” this should be determined by the facts of individual cases.
This Circular further pointed out that for an employee who raises at least two children under the age of three at the same time, even if the spouse is not employed, it is still necessary to consider the inability of a parent to single-handedly assume the responsibility for taking care of at least two children under the age of three and to encourage parents to participate in the growth of their young children. Therefore, the employee’s application to the employer for parental leave without pay pursuant to applicable requirements satisfies the “justified reasons” in the proviso of Article 22 of the Act if such employee needs to personally take care of at least two children under the age of three.