Indonesia’s New Mother and Child Law Imposes Additional Obligations on Employers

Indonesia has enacted wide-ranging new legislation on maternal and child welfare for the first 1,000 days of a child’s life (the “KIA Law”). In the employment sphere, this imposes a variety of new obligations on employers while simultaneously clarifying a number of existing ones.

From employers’ perspective, five aspects of the KIA Law are of particular interest.

Maternity Leave Entitlements

While the existing Manpower Law provides a female employee with the right to one and a half months’ leave before childbirth and one and a half months afterward (extendable without limit based on a doctor’s or midwife’s recommendation), the KIA Law stipulates that the three-month maternity leave entitlement can be extended by up to three more months. The additional leave may only be used in special circumstances, such as maternity-related health issues, postpartum complications, miscarriage, or the birth of a child with a health disorder or medical complication. All these circumstances need to be evidenced by a doctor’s certificate.

Additionally, in the event of a miscarriage, the employee is entitled to recuperation leave of one and a half months or longer, based on a certificate from a doctor, obstetrician, or midwife.

Obligation to Pay Salary During Extended Maternity Leave

The KIA Law also clarifies an employer’s obligation to pay an employee who takes extended maternity leave. The employee’s full pay must be provided during the first month of extended leave, with the amount reduced to 75% of the full pay for each of the next two months.

Support for Mothers in the Workplace

The KIA Law provides that every working mother is entitled to:

• Appropriate facilities for the provision of health and nutrition services and for lactation during work hours.
• Accessible child care facilities in terms of distance and affordability.
• Support through measures such as adjustment of duties and flexible or alternative working arrangements, while taking into account workplace exigencies and performance objectives.
• Sufficient time for caregiving, if required. (The legislation states that this issue will be governed by the employee’s contract of employment, employee handbook, or collective labor agreement.)

Unfortunately, no guidance or parameters are provided as to what would be considered “appropriate” or “accessible” in relation to the first two points. Despite this, the legislation provides that employers who fail to comply will be subject to “guidance” and administrative sanction from the government. More details on guidance and administrative sanctions are expected to be provided by the upcoming implementation of additional regulations.

Paternity Leave

Male employees/husbands are entitled to:

• Two days’ paternity leave at the time of the birth of a child, which may be extended by up to three days (or as agreed). This provision is rather unclear as it fails to explain what the criteria are for extended paternity leave.
• Two days’ leave in the event of a miscarriage.

While the amount of paternity leave mandated under the KIA Law is the same as under the Manpower Law, there is no provision in the Manpower Law for additional paternity leave.

The KIA Law also requires an employer to afford a husband sufficient time to be with his wife and/or child in cases where, 1) the wife experiences a health issue, disorder, or complication postpartum or after a miscarriage; 2) the child is born with a health issue, disorder, or complication; 3) the wife dies during childbirth; or 4) the child dies at birth.

Prohibition on Termination of Employment During Maternity Leave

Echoing the Manpower Law, the KIA Law prohibits an employer from dismissing a mother for availing herself of her rights under this legislation, such as taking extended maternity leave or leave for recuperation following a miscarriage. Mothers exercising these rights cannot be dismissed for doing so and must continue to receive their entitlements under the KIA Law.

Commentary

While the KIA Law clarifies and strengthens the rights of mothers, fathers, and children vis-a-vis employers, it suffers in some instances from a lack of definition and clarity, thus leading to some uncertainty and ambiguity as to what precisely employers need to do in order to comply with its provisions.

In addition, many of the rights conferred by the KIA Law are already provided by the Manpower Law, which remains in effect, thus leading to a degree of unnecessary overlapping.

Despite its shortcomings, the KIA Law clearly imposes a number of new requirements on employers while also clarifying existing ones. Employers would, therefore, do well to take note of the changes and to make whatever adjustments are required to their policies to ensure compliance. ​​​​​​​

Indra Setiawan, Tifanny Natalia, and Laras Kusumo are attorneys with ABNR, a LexMundi member firm, in Jakarta, Indonesia. © 2024 ABNR. All rights reserved. Reposted with permission of Lexology.