THE UNJUSTIFIED LAYOFF OF THE PREGNANT WORKER

This time I think is a good idea to go over the situation of the preganant worker in our country, and the first thing we have to do is give a little historical anlisis of who this special tipe of worker has been considered in Costa Rica throu time:

Before the Labor Code of 1948, the relationships of workers where regulated by the articles 1169 to 1174 of the Civil Code, in relation to the renting of services (this did not contemplate any type of protection for the pregnant worker) and by other special regulations as the ones in the Infance Code. In this last regulation the following laws where included, that had the intention of protecting in some way, this group of workers in the following way Article 4: Th women in pregancy that have a position in the public administration will have a permit of four weeks after birth.

During this period of time the replacement will have the condition of interin, but only the married women that have this situation will have her complete salary., Article 7: In case that the woman stays out of work for a bigger period of time of the one given by this law, or by medical certification cannot be declared layed off. From the transcriptions made we can think that some advantages where given to the pregnant worker like permit with salary, or the right of not being layed if she became sick because of given birth, nothing was said about the lay off of the pregnant women.

Not untill 1943, with the issuing of the Labor Code, the cited regulations from the Inface Code where abolished and the ones from the Civil Code also that a bigger protection was given to this type of worker, as it said in article 94 of the new lay It is prohibited to the employer to lay off a worker because of pregnancy or milking. Any justified lay off of this type of worker has to be previously notified to the Labor Authorities, As this was written the prohibition was limited only to the preganancy o milking causes, any other cause could be notified and executed.

Now we have to remember that one of government priorities, is to protect the mother and the child ( article 51 of the Constitution) reason that gives fundament to the regulations that have been trying to protect the preganant worker since it was issued in 1948.

This is why we have been incorporating to our laws, internationationaly accepted fundamental dispositions that have the intention of protecting women, as it is the case of CONVETION FOR THE ELIMINATION OF ANY TYPE OF DISCRIMINATIONS AGAINST WOMEN, signed by United Nations the 18 of december 1979, and ratified by Costa Rica in 1984.

Taking what was approved by this International Convention and with the idea of avoiding the making of false Just Causes of dismissal for the lay off of the preganant women, the government issued The Law for the Promotion of the Social Equality of Women in 1990, with the intention of protecting and wideining the protection in article 94 of the Labor Code, with says Article 94: It is prohibited to the employers to lay off any worker that is pregnant, or that is in here milking period, only by just cause originated by grave fault in her duties against the employeer as said in article 81 of this Law.

Also article 94 bis says:

Article 94 bis: The pregnant workers or in milking period that is fired againts what has been said in the previous article, could ask a labor judge her immediate re-instalment in full use of all her rights, once the claim if filed the judge will give a hearing in the following three day to the employer in order for him to defend his case, after this hearing and in the following five days he will order immediate re-installations if he considers correct, and also will impose to the employer the payment of the salaried not paid, having encarcelation as penalty for not following the court orders.

So Making sense of this, in the case that you fire a worker without just cause, that happens to be preagnant and you knew about it, this is what you have to pay:

The salaries pending from now untill the eighth month of preganacy

The salaries of the three months previous to the birth

The salaries of the three months after the birth

Cesanta

Preaviso

Vacaciones

Aguinaldo

The last four items we explained in previous articles.

So be prepared to reach to your pocket in this case or otherwise, follow and respect the law for the pregnant worker, help the new born and the mother have a safe birth and give the amount of time necessary for this pourpose, remember that nither you or me would be here is women did not get pregnant, is the law of nature and everybodies right.

If you have any questions please call my office at 255-1592 I woulb be glad to answer them,

Thank You

Rmulo Pacheco

Attorney