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Special Emergency Employment Contract and Pregnancy: Employer Obligations Following Constitutional Court Judgment No. 36-22-CN/26 — by Andrés Cervantes
Constitutional Court Judgment No. 36-22-CN/26 (May 2026) of Ecuador introduces a clear rule for employers using the special emergency employment contract provided for under Article 19 of the Organic Law on Humanitarian Support (LOAH): if, upon expiration of the contract term, the employee is pregnant or breastfeeding, the employment relationship cannot simply be terminated. This decision creates specific obligations that every employer should be aware of before proceeding with the termination of this type of contract.
What is the special emergency employment contract?
The special emergency employment contract is a fixed-term individual employment arrangement with a maximum term of one year, renewable once for the same period. It was designed to address specific productive needs of the employer, including emergency situations, new business lines, business expansions, or temporary increases in demand for goods and services.
Its main characteristic is its temporary nature: upon expiration of the agreed term, the employment relationship ordinarily comes to an end without this constituting unfair dismissal. However, the Constitutional Court has established that this temporary nature is subject to a constitutional limitation when the employee belongs to a specially protected group.
What changed with the judgment?
Prior to Constitutional Court Judgment No. 36-22-CN/26, there was legal uncertainty as to whether the constitutional protection afforded to pregnant or breastfeeding women extended to contractual arrangements that, by their nature, do not provide employment stability. The Constitutional Court resolved this uncertainty unequivocally.
The ruling establishes that the automatic application of Article 19 of the LOAH—that is, terminating the contract solely because its term has expired—is unconstitutional when the employee is pregnant or breastfeeding. The Court bases its decision on Articles 43, 331, and 332 of the Constitution of the Republic of Ecuador, which guarantee enhanced protection, non-discrimination, and employment stability for this group, regardless of the contractual arrangement used.
What must private employers do?
When a special emergency employment contract reaches its expiration date and the employee is pregnant or breastfeeding, the employer has two constitutionally valid alternatives:
- Extend or renew the special emergency employment contract until the breastfeeding period ends. This extension does not change the nature of the contract or convert it into an indefinite-term agreement; it merely postpones its termination until the enhanced protection period has ended.
- Enter into a new employment contract under another contractual arrangement that guarantees continuity of the employment relationship under the same or better position and compensation conditions until the breastfeeding period ends.
In either case, once the breastfeeding period has ended, the contract may be terminated upon expiration of its term without this being considered unfair dismissal or giving rise to the corresponding statutory severance payments applicable to such dismissal.
Risks of non-compliance
An employer that terminates the employment relationship solely because the contract term has expired, while disregarding the employee’s pregnancy or breastfeeding status, may face the following consequences:
- An action for ineffective dismissal, potentially resulting in the employee’s reinstatement or the payment of compensation equivalent to one year of remuneration, pursuant to Article 195.3 of the Labor Code.
Recommendations
In light of this scenario, companies that use special emergency employment contracts are advised to take the following preventive measures:
- Verify the employee’s pregnancy or breastfeeding status before communicating the non-renewal or termination of the contract due to expiration of its term.
- Properly document any extension or new contract entered into to cover the constitutionally protected period, expressly recording its temporary nature and the agreed terms and conditions.
- Train Human Resources personnel on the scope of Constitutional Court Judgment No. 36-22-CN/26 and its mandatory application in all employee termination processes involving women hired under the special emergency employment arrangement.
Apolo Abogados has a team of professionals with expertise in labor and constitutional law. For inquiries, please contact attorneys Oscar Erráez (oerraez@apolo.ec) and Andrés Cervantes (acervantes@apolo.ec).