On 16 November, Royal Decree 1251/2001 was published in the Spanish Official Gazette (BOE), regulating the financial benefits provided by the Social Security system for maternity leave and pregnancy-related risk situations.
Written by Josep Conesa
Employment and insolvency lawyer
This legislation aims to protect not only the duration of the employment contract suspension period (sixteen uninterrupted weeks, extendable to eighteen weeks in the case of multiple births), but also situations in which the pregnant worker is exposed to risk.
In this month's issue we will analyse the maternity subsidy, and next month we will look at the subsidy for pregnancy-related risk.
MATERNITY subsidy:
Protected situations:
1.- The following are recognised as protected situations: maternity, adoption and pre-adoptive and permanent foster care, during the rest periods taken in connection with such situations.
2.- Cases of adoption or foster care involving individuals with a disability or impairment of 33% or more, or those who — due to their personal circumstances and background, or because they originate from abroad — fall within the purposes and legal effects established for adoption and pre-adoptive or permanent foster care, regardless of the specific terminology used.
3.- In the case of self-employed workers enrolled in the Special Schemes of the Social Security system, where the circumstances of maternity, adoption or pre-adoptive and permanent foster care arise, during any periods of cessation of activity that coincide — in terms of both duration and distribution — with the statutory rest periods established for employed workers.
Requirements to qualify as beneficiaries of financial benefits:
Workers who, regardless of their sex, find themselves in any of the situations referred to above are entitled to maternity financial benefits.
At the start of the maternity leave period, the mother has the option of transferring part of the leave to the father, who may consequently receive a specified, uninterrupted portion of the subsidy corresponding to the rest period following the birth. However, this option may be revoked by the mother if circumstances arise that make it unworkable — for example, the father's absence, illness or accident, abandonment of the family, separation, or other similar situations.
In all cases, beneficiaries must meet the following requirements:
a) Be registered and active — or in an equivalent status — under a scheme within the Social Security system.
b) Demonstrate a minimum contribution period of one hundred and eighty days within the five years immediately preceding the date of birth, or the date of the administrative or judicial decision on fostering, or the court ruling establishing the adoption.
Where the working mother has not completed the required minimum contribution period, the father may, at the mother's option, receive the subsidy for the full duration of the applicable rest leave, less a period of six weeks coinciding with the mandatory post-birth rest period, provided that he can demonstrate that he meets the said requirement.
The father and mother may take the maternity rest period simultaneously or consecutively. Where this occurs, both will be treated as beneficiaries of the subsidy, provided that each independently meets the requirements set out above.
Under the Special Schemes of the Social Security, workers must be up to date with their Social Security contributions.
Duration of financial benefits: The benefit period may not exceed sixteen weeks, except in cases of multiple births, or the equivalent where the rest period is taken on a part-time basis.
Amount of financial benefits: The maternity financial benefit shall consist of a subsidy equivalent to 100% of the applicable regulatory base. This shall be equivalent to the amount established for temporary disability (IT) benefit arising from common contingencies, calculated by reference to the date on which the rest period begins.
Special allowances in cases of multiple births and adoptions or foster placements of more than one child:
In the case of a multiple birth or the simultaneous adoption or foster placement of more than one child, a special subsidy shall be granted for each child from the second onwards, equivalent to the amount payable for the first child, for a period of six weeks immediately following the birth, or — in the case of adoption or foster placement — from the date of the administrative or judicial foster care decision or the judicial ruling establishing the adoption.
The beneficiaries of this special subsidy shall be those who are also entitled to the maternity benefit payment, although it may only be received by one of the parents. In the case of birth, the beneficiary shall be determined at the mother's choice; in the case of adoption or foster placement, it shall be decided freely by the parties concerned.
Commencement, duration and termination of entitlement:
Entitlement to the maternity subsidy shall arise from the first day of the corresponding rest period.
It shall be paid to each beneficiary, where applicable, for the portion of the rest periods actually taken by the mother and the father.
In the event of the death of the child, the beneficiary shall be entitled to the financial benefit for the remaining days needed to complete the mandatory six-week post-birth rest period for the mother, provided that period has not yet been exhausted. In such cases, any transfer of entitlement previously exercised by the mother in favour of the father shall become void.
In the event of the mother's death, the father may receive all or, where applicable, the remaining portion of the maternity subsidy period.
Where the mother has opted for the father to take a specific uninterrupted portion of the maternity rest period and, once the father has begun taking that period, he dies before completing it, the mother may become entitled to the subsidy for the remaining portion of the rest period up to the applicable maximum duration, even if she had already returned to work prior to that point.
Termination of entitlement:
1.- Upon expiry of the maximum duration periods, which as a general rule are up to sixteen weeks.
2.- Where the rest period is taken exclusively by the mother or the father, due to the voluntary return to work of the recipient of the subsidy before the maximum duration of that rest period has elapsed. It should be noted that the mother's return to work may not take place until at least six weeks have passed from the date of birth, as this period is established as mandatory rest in all cases.
3.- Where the rest period is taken successively or simultaneously by the mother and the father, due to the voluntary return to work of one or both of them before the maximum duration of their respective rest periods has elapsed. In this case, the remaining portion of the rest period shall be added to the duration of the subsidy to which the other recipient is entitled.
4.- Upon the death of the recipient, unless the surviving parent is able to continue enjoying the rest period.
5.- Upon the death of the child or foster child.
An important point to note is that termination of the employment contract once the rest period has begun does not extinguish the right to receive this subsidy.
Once the sixteen-week maternity rest period has been exhausted, if the recipient continues to require medical care as a result of childbirth and is unable to work, she shall be considered to be in a situation of temporary disability (IT) due to common illness, and — provided the required conditions are met and without interruption — payment of the subsidy corresponding to the new contingency shall commence from that point.
Administration and payment of benefits: The subsidy is administered directly by the National Social Security Institute (National Social Security Institute (INSS)).
The subsidy shall be paid to each recipient, where applicable, for the periods actually taken by the mother and the father, and is always paid directly by the National Social Security Institute (National Social Security Institute (INSS)).
