.jpg)
In this article, we explain the rights available to women when they become pregnant and, subsequently, when they become mothers.
Written by Josep Conesa
Employment and insolvency lawyer
We refer to 'women' throughout this article as they are typically the ones who assert these rights; however, the same provisions apply equally to men where they are the ones seeking to exercise them.
If you would also like information on how to draw up an Equality Plan, please follow this link.
How to create an Equality Plan in your company
MATERNITY:
In the event of childbirth, the employment contract will be suspended, but the employee retains the right to have her position held open and to return to work upon the end of the suspension.
In this case, the suspension period lasts 16 weeks (4 months).
This leave must be taken on an uninterrupted basis and may be extended by two weeks for each additional child in the case of a multiple birth, from the second child onwards.
The employee may distribute this leave as she sees fit, provided that 6 weeks are taken immediately following the birth.
Where both the father and the mother of the newborn are employed, the mother may, at the start of the maternity rest period, opt for the father to take a defined portion of the post-birth rest period, either simultaneously or consecutively with the mother's leave, without prejudice to the mandatory 6 weeks of post-birth rest for the mother.
This option is also available in cases of fostering or adoption, provided the child is under six years of age. In such cases, the suspension will last 16 uninterrupted weeks, which may be extended in the event of multiple adoption or fostering.
The suspension period will exceed 16 weeks where the adopted or fostered children are over six years of age and have a disability or impairment. The same extension applies where the children are foreign nationals experiencing difficulties with social integration.
Should the employee be in her probationary period and go on maternity leave, the running of that period will be suspended, provided both parties agree.
AMENDMENTS INTRODUCED BY THE Royal Decree OF 16 NOVEMBER 2001, GOVERNING MATERNITY BENEFITS:
Special maternity subsidy:
A notable change is the possibility that, where the mother does not meet the minimum contribution requirement for entitlement to the benefit (due to having worked for only a short period), the father may receive the maternity benefit for the full duration of the rest period (with the exception of the first 6 weeks).
Previously, if the mother did not meet this requirement, she would not receive the maternity benefit, although she retained the right to 16 weeks of leave.
Part-time maternity leave:
Another change introduced by this legislation is that the rest period for maternity, adoption and fostering may be taken on a part-time basis.
Employees who are mothers or fathers will be able to combine work (on a part-time basis) with maternity benefit (on a proportional basis). At the end of the maternity rest period, they will revert to the working arrangements in place at the start of the leave.
This measure, which may be exercised by either the mother or the father, enables women to maintain their connection with their role, ensuring that maternity does not become an obstacle to their professional advancement.
To take advantage of the option to combine maternity benefit with a part-time contract, a prior agreement between the employer and the employee is required. In cases of childbirth, this arrangement cannot be used during the 6 weeks of compulsory rest for the mother. In cases of adoption and fostering, however, no such restriction applies.
If, during the part-time working hours, a situation arises giving rise to a temporary disability (IT) contingency, the maternity subsidy and temporary disability (IT) benefit may be received concurrently.
Taking parental leave on a part-time basis is incompatible with simultaneously taking breastfeeding leave or reduced working hours for legal guardianship purposes (rights explained below).
BREASTFEEDING LEAVE:
Female employees who are breastfeeding a child under nine months of age are entitled to one hour's absence from work, which may be split into two separate periods. At her own discretion, a woman may instead opt for a reduction of half an hour in her working day for the same purpose.
This entitlement may be taken by either the mother or the father where both parents are in employment.
In cases involving premature births or where, for any reason, a newborn must remain hospitalised following delivery, the mother or father is entitled to one hour's absence from work per day.
They are also entitled to reduce their working hours by up to a maximum of two hours, with a proportional reduction in their salary.
In all cases, the employee must give the employer 15 days' prior notice of the date on which they will return to their normal working hours.
LEAVE OF ABSENCE FOR CHILDCARE:
Employees are entitled to a period of unpaid leave of absence of up to three years to care for each child. This right applies equally to biological children and to cases of adoption or foster care.
The leave of absence constitutes an individual right for employees, whether male or female. The employee on leave of absence is entitled to have their position held open for them during the first year. Once that period has elapsed, the right to reinstatement applies to a position within the same professional group or equivalent category.
The period during which the employee is on leave of absence counts towards seniority, and the employee is entitled to attend vocational training courses, to which the employer must invite their participation.
REDUCED WORKING HOURS FOR LEGAL GUARDIANSHIP:
Any employee who, by reason of legal guardianship, has direct care of a child under six years of age or of a person with a physical, intellectual or sensory disability who does not carry out any other paid activity, is entitled to a reduction in working hours of between at least one third and a maximum of one half of their normal hours, with a proportional reduction in their salary.
This reduction in working hours is an individual right of workers, men and women alike.
ATTENDANCE AT ANTENATAL CLASSES:
Pregnant employees shall have the right to be absent from work, with full pay, in order to undergo prenatal examinations and attend birth preparation classes, provided prior notice is given to the employer and the necessity of attending during working hours is duly justified.
As an example, the collective bargaining agreement for the Graphic Arts sector provides for the possibility of classifying such absences as authorised. Accordingly, the necessary leave is granted to female employees to attend birth preparation classes, provided they coincide with working hours and are delivered through the Social Security healthcare network, subject to a medical prescription, with a maximum of eight sessions.
OCCUPATIONAL RISK PREVENTION AND MATERNITY PROTECTION:
The employer must carry out an assessment of the risks to the
health and safety of employees, with a view to implementing the company's preventive measures.
This risk assessment must include a determination of the nature, degree and duration of exposure of pregnant or recently delivered employees to working conditions that may adversely affect the health of the employee or the foetus, in any activity liable to present a specific risk.
If the results of the assessment reveal a risk to health and safety or a potential impact on the pregnancy or breastfeeding of pregnant employees, the employer shall take the necessary measures to avoid exposure to that risk, through an adaptation of the employee's working conditions or working hours.
Where such adaptation is not possible, the employee must be assigned to a different role or function that is compatible with her condition.
If such a reassignment is not technically feasible due to the absence of a compatible role, the employee may be assigned to work outside her job category, whilst retaining the full remuneration package of her original post.
There are many other rights that have been incorporated into the Workers' Statute. Consult our specialist lawyers in workplace harassment and sexual harassment here:
