Parental leave (urlop wychowawczy) is a special kind of time off work intended to let a parent provide personal care for their child. In practice, however, many parents wonder whether they can send their child to a nursery or preschool while on this leave. The question becomes particularly important given the possibility of taking up additional paid work during parental leave. For employers of such staff, we keep leave records, contracts and payroll as part of our HR and payroll services.
The basic purpose of any parental leave is to ensure constant, as uninterrupted as possible, contact between the parent and their child. This means that an employee on such leave should focus above all on caring for their child. At the same time, the law provides a certain flexibility in this respect, which means that the interpretation of specific situations may raise doubts for both employees and employers.
Parental leave is available to employees with at least 6 months of employment and lasts up to 36 months. It can be used no later than until the end of the calendar year in which the child turns 6. For a child with a disability certificate, an additional leave of up to 36 months is available, but no longer than until the child turns 18
Basic rules of parental leave
Under the Labour Code (Kodeks pracy), parental leave is a special employee entitlement designed to enable personal care for a child. The legal rules in this area are very precise and set out both the conditions for acquiring the right to leave and the rules for using it.
An employee with at least 6 months of employment is entitled to parental leave in order to provide personal care for a child. All previous periods of employment with different employers count towards this 6-month period. Parental leave lasts up to 36 months and is granted for a period no longer than until the end of the calendar year in which the child turns 6.
For children who require special care because of a health condition confirmed by a disability certificate, an additional parental leave of up to 36 months may be granted on top of the basic leave, but no longer than until the child turns 18 (Article 186 § 3 of the Labour Code)
It is particularly important that the 36 months of parental leave are available to both parents or guardians of the child jointly. Since 26 April 2023, however, each parent has an exclusive right to 1 month of this leave, which cannot be transferred to the other parent (Article 186 § 4 of the Labour Code). The parents can split the rest between them, but the total period cannot exceed 36 months per child. This gives families more flexibility in planning childcare and allows the leave to be better adapted to the family's individual needs. Parents also often ask whether they are protected from losing their job during this time — the answer is in our article on parental leave and dismissal protection.
The basic premise of parental leave is to ensure continuous contact between parent and child. During this time, as a rule, the employee should not work, as that would be contrary to the nature of the leave. However, the law provides certain exceptions to this rule that allow limited professional activity.
Working during parental leave
The Labour Code allows an employee on parental leave to take up additional professional activity. This rule, however, comes with an important condition that must be strictly met.
Under the law, during parental leave the employee may take up paid work with their current or another employer, or another activity, as well as study or training. What is crucial, however, is the proviso that these activities must not rule out the possibility of providing personal care for the child.
An employee on parental leave may take up additional paid work or run a business, provided this does not rule out the possibility of providing personal care for the child. Breaching this condition may result in losing the right to the leave
If the employer establishes that the employee has permanently stopped providing personal care for the child, the employer calls on the employee to return to work. The employer sets the return date: no later than 30 days from the day it learned of this, and no earlier than 3 days from the day of the call (Article 186² § 2 of the Labour Code).
This legal rule is very ambiguous and in practice causes considerable interpretation problems. On the one hand, the legislator expressly allows additional employment or business activity; on the other, it stresses that ceasing to provide personal care for the child results in the loss of the right to parental leave.
A correct understanding of the term "providing personal care for the child" is therefore crucial. It does not mean having to be with the child around the clock without a break, but it does require the parent's real involvement in caring for and bringing up their child.
Parental leave and sending your child to a nursery or preschool
Whether a child can be sent to a nursery or preschool during parental leave is one of the questions parents ask most often. There is no clear-cut answer, and it depends largely on the specific circumstances of each case.
Some parents on parental leave do not want to devote all their time exclusively to childcare. Many of them decide to keep working for another company or to take on additional assignments, mainly under civil-law contracts. In such cases, the parent often decides to send the child to a nursery or preschool, even for the whole day.
Sending a child to a nursery or preschool during parental leave is legally permissible, but it must be assessed in the light of the specific circumstances of the case. What is crucial is keeping the possibility of providing personal care for the child
Assessing whether this is acceptable must take into account above all how long the child spends at the facility and what the parent does during that time. If the child spends too long at the preschool or nursery and the parent works intensively during that time, the employer may conclude that there is a serious breach of the rules on using parental leave.
On the other hand, leaving the child in the care of a facility for 3-4 hours a day should not be a major problem, especially if the parent uses that time for limited professional activity or other activities that do not rule out the possibility of providing personal care for the child.
Much depends on the circumstances of the specific case, including:
- How long the child spends at the facility
- The type and intensity of the work done by the parent
- The child's age and developmental needs
- Whether care can be provided outside the hours spent at the facility
Practical examples of applying the rules
To better understand the rules on sending a child to a nursery or preschool during parental leave, it helps to analyse specific situations that may arise in practice.
First example - acceptable use of the leave
An employee is on parental leave to care for her 2-year-old son. For the first 4 months of the leave, she stayed at home with the child the whole time and took care of all childcare duties herself. She would now like to send the child to a nursery for 3 hours a day so that she can take on additional assignments without giving up her parental leave.
In the situation described, the parental leave can continue, because the child does not lose the mother's care in its essential scope. Constant, daily contact with the parent is ensured, even when the child spends a few hours a day at the nursery. The mother still provides personal care for the child for most of the day.
A child spending a few hours at a nursery or preschool does not conflict with the parent providing personal care for the child, provided the parent continues to be actively involved in caring for and bringing up the child for the rest of the day
Second example - breach of the parental leave rules
An employee is on parental leave to care for her 4-year-old daughter. For the first year of the leave, she cared for the child together with her husband. She would now like her daughter to attend a public preschool open from 6:00 to 17:00 for that entire period. While the child is at the preschool, the mother wants to take up additional employment at a new workplace without giving up her parental leave with her current employer. After the child returns from preschool, the grandmother is to look after her so that the employee can finish her work duties. Such a plan also raises the question of job security — the rules on notice during parental leave are described in a separate guide.
In this situation, the employer may withdraw the employee's parental leave, because the circumstances of the case make it clear that she will not be providing personal care for the child. Care will be provided by the preschool and the grandmother, while the mother will be actively working for another company for the whole time her daughter is away from home.
This example clearly shows when the use of parental leave becomes improper. What matters is not only how long the child spends at the facility, but above all how the parent uses that time and whether continuity of care is ensured.
Personal care of the child and attendance at a nursery or preschool
The Labour Code does not prohibit sending a child to a nursery or preschool during parental leave. Article 186² § 1 of the Labour Code only requires that paid work, other activity, study or training undertaken during the leave does not rule out the possibility of providing personal care for the child.
The provision does not define personal care. Case law (including the judgment of the WSA in Gorzów Wielkopolski discussed below) accepts that there may be breaks in direct and personal care which do not deprive that care of the special character resulting from the purpose of parental leave.
Providing personal care for a child does not mean having to be in constant, uninterrupted contact with the child. The person providing care may be replaced by household members or other people for shorter periods
Providing care personally therefore cannot be equated with being with the child 24 hours a day without a break. Breaks in direct and personal care do not take away the special character of parental leave.
Taking the above arguments into account, the law does not prevent the child from attending a nursery or preschool while the employee is on parental leave. What is crucial, however, is keeping a balance between the time the child spends at the facility and the time the parent provides personal care.
The final assessment depends on the circumstances of the specific case, and in a dispute it is decided by the labour court. In case of doubt, it is worth contacting the competent District Labour Inspectorate.
Case law on parental leave
Case law is an important element in interpreting the rules on parental leave. Courts have repeatedly ruled on the limits of acceptable use of this leave, including in the context of sending children to childcare facilities.
In its judgment of 21 May 2014 (case no. II SA/Go 311/14), the Voivodeship Administrative Court (WSA) in Gorzów Wielkopolski examined a case concerning the supplement to the family allowance for childcare during parental leave (urlop wychowawczy), that is, a benefit under the Family Benefits Act, not a dispute with an employer. The court held that refusing the supplement is justified only when the child is placed in a facility providing round-the-clock care for more than 5 days a week (now Article 10(5)(4) of the Family Benefits Act), not by mere attendance at a day-care facility.
According to case law, the fact that a child uses daytime care at an educational and care facility, such as a nursery or preschool, cannot be a direct basis for refusing the supplement to the family allowance for childcare during parental leave
The court stressed that in such a situation it must be shown that the child's stay at the facility actually prevents the parent from providing personal care for the child. Providing personal care does not mean having to be in constant, uninterrupted contact, and the person providing care may be replaced by other people in carrying out care tasks for shorter periods.
Although the judgment concerned family benefits rather than the employment relationship, the court's understanding of personal care is also helpful when applying Article 186² § 1 of the Labour Code and confirms that the assessment of the specific circumstances of each case is crucial. You cannot automatically assume that sending a child to a nursery or preschool means a breach of the rules on using parental leave.
Practical tips for parents
Parents planning to send their child to a nursery or preschool while on parental leave should consider several practical aspects that will help them avoid problems with their employer.
First, how long the child spends at the facility is crucial. The longer this time, the greater the risk that the employer will question whether continued use of parental leave is justified. Limiting the child's stay at the facility to a few hours a day, for example 3-4 hours, appears to be a safe solution – although the law does not set any limit on hours.
Second, it is important how the time the child spends at the nursery or preschool is used. If the parent works intensively during that time, especially full-time, this may be considered a breach of the parental leave rules. Limited professional activity, or using that time for other family-related purposes, is a better solution. Family matters can also raise questions about money at home — one case is an adult child not contributing to household bills.
Here are the most important rules to follow:
- Limit the child's time at the facility to the necessary minimum
- Provide personal care for the child for most of the day
- Avoid intensive work while the child is at the facility
- Document the time spent with the child and your involvement in bringing them up
- Communicate transparently with your employer if in doubt
Parents should remember that each situation is assessed individually, and what is crucial is keeping a balance between the time the child spends at the facility and the personal care provided by the parent
Consequences of breaching the parental leave rules
Breaching the rules on using parental leave can have serious consequences for the employee. An employer who establishes that the employee has permanently stopped providing personal care for the child has the right to call on them to return to work.
The procedure for calling the employee back to work is strictly defined by law. The employer calls the employee back to work on a date that falls no later than 30 days from the day it learned that care had stopped and no earlier than 3 days from the day of the call. The employee is obliged to report for work on the set date.
The consequences may include:
- Early termination of parental leave
- An obligation to return to work on the set date
- A possible demand to repay benefits received unduly (for example, the supplement to the family allowance for parental leave)
- Negative consequences in the assessment of the employee
- The end of protection against termination, which lasts until the last day of parental leave (Article 186⁸ of the Labour Code)
The Labour Code does not provide a separate procedure for appealing against a call to return to work. An employee who considers the call unjustified can assert their rights before a labour court, for example if the employer terminates their contract. They can seek help from trade unions or lawyers specialising in labour law
It is worth stressing that the employer must show that the employee has actually permanently stopped providing personal care for the child. Merely stating that the child attends a nursery or preschool is not enough - it must be proven that this prevents the parent from providing personal care.
Differences between parental leave and other types of leave
Parental leave differs significantly from other types of leave available to employees. Understanding these differences is crucial to using this entitlement properly and avoiding legal problems.
The basic purpose of parental leave is to provide personal care for the child, whereas annual leave (urlop wypoczynkowy) is for rest and recovery. Maternity leave, in turn, is intended to protect the health of mother and child around the time of birth.
| Type of leave | Main purpose | Can you work? | Duration | Child's age limits |
|---|---|---|---|---|
| Parental leave (urlop wychowawczy) | Childcare | Limited | Up to 36 months | Up to 6 years (18 years for children with disabilities) |
| Maternity leave | Health protection | No work allowed | 20 weeks | First months of life |
| Parental leave (urlop rodzicielski) | Childcare | Up to half-time with the employer granting the leave | Up to 41 weeks | Up to 6 years |
| Annual leave | Rest | No work allowed | According to entitlement | No limits |
Parental leave (urlop wychowawczy) allows you to take up paid work, including with another employer or in your own business, provided this does not rule out the possibility of providing personal care for the child. Parental leave (urlop rodzicielski), by contrast, can be combined with work only for the employer granting the leave, for no more than half of full-time hours (Article 182¹e of the Labour Code). This flexibility makes it an attractive option for parents, but it can also lead to interpretation problems.
Documentation and procedures relating to parental leave
Properly documenting parental leave and the related circumstances can be crucial in a dispute with your employer. Parents should keep documentation confirming that they provide personal care for the child.
Documents worth keeping include:
- The application for parental leave
- Documents confirming the child's attendance at a nursery/preschool (if applicable)
- Employment contracts or contracts of mandate (umowa zlecenia) entered into during the leave
- The child's medical records (in the case of health problems)
- Correspondence with the employer concerning the leave
Parents should keep documentation confirming that they actually care for the child, especially if the child attends a nursery or preschool. This may help if the employer questions whether the leave is being used legitimately
The procedure for applying for parental leave is relatively simple, but it requires you to meet certain deadlines. The employee submits the application on paper or electronically at least 21 days before the leave starts (Article 186 § 7 of the Labour Code), stating the planned period of leave and the basic circumstances justifying it.
