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The new waiting period for the labour market subsidy after family leave (TAS 438/2017, issued on 14 June 2018)

The Ombudsman for Equality was contacted regarding the reinstatement of the waiting period for the labour market subsidy after parental leave.

A woman had applied for the labour market subsidy for the first time, and she was issued with a 21-week waiting period, after which she received her labour market subsidy. The woman became pregnant while she received her labour market subsidy and went on family leave. After her parental leave, she registered as unemployed. The Social Insurance Institution of Finland (Kela) decided on a new 21-week waiting period, about which the woman has now submitted a complaint.

Based on the account received from Kelalta, the reception of unemployment benefits requires that the applicant be ready to accept full-time employment. According to chapter 7, section 2 of the Unemployment Security Act, labour market subsidy is paid after a 21-week waiting period. This waiting period is not set for a person who has completed a post-comprehensive school or upper-secondary school educational programme that leads to a degree and professional competence.

This waiting period usually begins after the applicant has registered as an unemployed jobseeker. An unemployed jobseeker who is seeking full-time employment is entitled to the unemployment benefit. If the person who has been on family leave has remained registered as an unemployed jobseeker, this waiting period does not need to examined when the family leave ends.

The waiting period can be set multiple times for the same person if the person does not possess the proper educational qualifications. This means that the waiting period is not a matter that a person can be subjected to only once. In practice, it is fairly common to have benefit recipients discontinue their job search for one reason or another, and when they reregister as jobseekers, their waiting period is examined again.

Family leave should be taken into account in regulations concerning the waiting period

The Ombudsman for Equality monitors compliance with the Act on Equality between Women and Men (Equality Act). Treating a person differently on the basis of their parenthood or family care obligations constitutes discrimination that violates the Equality Act. This means for example treating a person differently on the basis of their parental leave.

The tasks of the Ombudsman for Equality do not include monitoring the use of legislative power and the administration of justice. The Ombudsman for Equality thus does not have jurisdiction to issue a statement on an individual decision by Kela on the setting of a waiting period. The application of the Unemployment Security Act in the setting of a waiting period is part of Kela’s jurisdiction, and its decision included the right to file a complaint first to the Social Security Appeal Board and then to the Insurance Court. Changing the provisions in the Unemployment Security Act belongs to the jurisdiction of the Parliament of Finland.

However, the Ombudsman for Equality noted that it would be important to assess how the provisions concerning the waiting period in the Unemployment Security Act could better take into account the status of people who are using their family leave rights. Women use the notable majority of family leaves. Reinstating the waiting period in situations where the absence from the labour market was the result of using one’s family leave rights is a surprising consequence that causes financial difficulties.

Usually legislation considers family leaves to have no effects for their duration in a way that their use does not cause any negative consequences for receiving different benefits. It is also not appropriate that a person who is on family leave should register as unemployed jobseekers only to avoid a new waiting period when they have no intention of participating in the labour market but instead intend to care for their child during their family leave.

According to the Equality Act, public authorities must promote the equality between women and men in all their activities. This means for example that the drafting process for new laws and other rules should also evaluate their gender-based effects. Any amendments to the Unemployment Security Act are prepared in the Ministry of Social Affairs and Health. The Ombudsman for Equality provided this statement to the Ministry of Social Affairs and Health for any possible further actions.