Within the framework of maternity benefits, protected situations include biological maternity, adoption, and foster care arrangements — both pre-adoptive and permanent — during the rest periods taken on account of such situations.
Written by Josep Conesa
Employment and insolvency lawyer
The eligible recipients are employed workers — including those on training contracts and part-time contracts — regardless of gender, who take rest periods in connection with maternity, adoption, or foster care (whether pre-adoptive or permanent), provided they meet the following requirements:
1.- They must be registered with and actively affiliated to the Social Security system, or in an equivalent recognised status.
2.- They must have completed a minimum contribution period of 180 days within the 5 years immediately preceding the date of birth, the start of the rest period (if earlier), or the date of the administrative or judicial foster care decision or the court ruling constituting the adoption.
3.- In the event of childbirth, if the mother does not meet the required contribution period, the father may receive the subsidy for the full duration of the applicable rest leave, minus a period of 6 weeks.
4.- In cases of international adoption where the parents were required to travel to the child's country of origin beforehand and opt to take the suspension period provided for in such cases — which may begin up to 4 weeks before the court ruling constituting the adoption — the requirements set out above must be met as at the start date of that suspension period.
5.- For part-time workers, when calculating contribution periods, only contributions made in respect of hours actually worked — both regular and complementary hours — shall be taken into account, converted into equivalent theoretical contribution days.
When the right arises:
· In the case of maternity: from the day of birth itself, or from the start of the rest period if that date is earlier.
· In the event of the mother's death (for the father): from the date on which the work suspension begins.
· Where the mother opts for the father to take up to 10 weeks: from the date on which the father's rest period begins, which will coincide with the date chosen when exercising the option.
· In cases of adoption and foster care, whether pre-adoptive or permanent: from the date of the judicial adoption order or the administrative or judicial foster care decision; however, payment of the benefit may commence from the day after the individual receives the relevant document, and is conditional upon the leave actually being taken.
· In cases of international adoption where the parents are required to travel to the child's country of origin in advance: the subsidy may begin up to 4 weeks before the order formally constituting the adoption is issued.
Duration of rest periods:
In the case of maternity: as a general rule, 16 uninterrupted weeks, except in cases of premature birth or where the newborn must remain hospitalised following delivery, extendable by a further 2 weeks for each child from the second onwards in the case of a multiple birth. This period may be taken on a full-time or part-time basis.
In the case of adoption and foster care: 16 uninterrupted weeks, extendable by a further 2 weeks for each child or minor from the second onwards in the case of a multiple adoption or multiple foster care placement, respectively.
Financial benefit:
This takes the form of a subsidy, paid from the date on which the entitlement arises, the amount of which is calculated by applying a percentage to the regulatory base.
The applicable percentage is 100% of the regulatory base. In addition, in the case of a multiple birth or the simultaneous adoption or foster care of more than one child, a special subsidy will be granted for each child from the second onwards, equal to the amount received for the first child, for the 6-week period immediately following the birth or, in the case of adoption or foster care, from the administrative or judicial foster care decision or the judicial order formally constituting the adoption.
The regulatory base, as a general rule, is calculated by dividing the amount of the employee's contribution base for the month preceding the start of the rest period by the number of days to which that contribution relates (the divisor will specifically be: 30, if the employee receives a monthly salary; or 30, 31, 28 or 29, if they receive a daily salary).
Special cases:
· In cases of multiple employment, the regulatory base is calculated by combining all contribution bases from the various companies, subject to the applicable maximum contribution ceiling.
· In the case of employees employed on a part-time basis, regardless of the duration of their service:
a) The daily regulatory base shall be the amount resulting from dividing the sum of the contribution bases accrued within the company during the 12 months prior to the date of the triggering event by 365.
b) If the employee's length of service with the company is shorter, the regulatory base shall be calculated by dividing the sum of the accrued contribution bases by the number of calendar days to which they correspond.
· In the case of employees on training contracts: the regulatory base shall be 75% of the applicable minimum contribution base.
· In cases of premature birth, or where, for any other reason, the newborn must remain hospitalised following delivery, when the subsidy resumes after the child is discharged from hospital, it shall be paid at the same amount that was being received prior to the interruption.
A beneficiary who, having exhausted the maternity rest period, continues to require medical care as a result of childbirth and is unable to work, shall be considered to be in a situation of temporary disability (IT) due to common illness. Payment of the subsidy corresponding to this new contingency shall begin from that point, provided the required conditions are met, without any break in continuity.
The right to the subsidy may be refused, cancelled or suspended where the beneficiary acts fraudulently in order to obtain or retain the benefit, or where the beneficiary carries out self-employed or employed work during the corresponding rest periods.
