Social Security

Who can be recipients?

Workers included in the General Social Security Scheme or in the Special Schemes who take legally esablished leave for the birth of a child, adoption or foster care, if they meet the requirements.

In cases of birth, the suspension corresponds only to the other parent. In cases of adoption or foster care, the suspension corresponds to only one of the parents, whom they can choose, but, when one of the parents has taken the whole of the maternity leave, the right to contract suspension for paternity leave is only for the other parent.

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When is a child considered to have been born?

The child is understood to have been born when it has a human shape and lives for at least 24 hours out of the mother's womb.

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What conditions to the adopted or fostered minor have to meet to be entitled to the benefit?

For cases of workers included in the WS  or self-employed workers included in the Special Social Security Schemes, the adopted or fostered child must be under 6 years old to be entitled to the benefit.

Children over 6 but under 18 years of age or who, because of their personal circumstances and experiences or because they have come from abroad, have special difficulties integrating into society or the family, if this has been duly certified by the competent social services. An adopted or foster child is defined as disabled when they are certified with a degree of disability greater than or equal to 33%.

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What is the minimum period during which contributions must have been made in order to have the right to the benefit?

The minimum contribution period is 180 days in the 7 years immediately prior to the date when work was suspended or, alternatively, 360 days in all the person's working life before that date, except for certain exceptions.

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How is the minimum contribution period calculated for part time workers?

The period of 7 years within which the normally required 180 contributions days must be included, is extended in the same proportion as the day worked is reduced when compared to a normal day's work in this job.

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How long does it last?

Self-employed workers included in the WS have a right to suspend their contracts for a consecutive, unbroken period of thirteen days which can be extended by two more days for each child after the second for multiple births, adoptions or foster care, and can take this time either as full-time days or part-time days with a minimum of 50%, with the prior agreement of the employer and worker, and in compliance with the regulations.

As far as self-employed workers in the Special Social Security Schemes are concerned, the periods will be the same, both in duration and distribution, as the regulation leave periods for workers employed by others, although the possibility of taking the leave as partial days has still not been regulated.

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If there is only one parent (father unknown or adoption or foster care by only one person), can paternity leave and maternity leave both be taken?

When there is only one parent, paternity leave and maternity leave cannot both be taken; there must be two parents for this to be possible.

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When does the leave for the birth of a child start?

As a general rule, employed persons included in the  ET  can exercise this right either after the end of the legal or agreed paid leave (minimum of 2 days) for the birth of a child until the end of the suspension of the employment contract due to maternity; or immediately after the end of said suspension for maternity.

Regarding self-employed workers under Special Schemes, the leave can start at the time of birth of the child.

Regarding workers included in the Basic Statute for Civil Servants, the leave period will be exercised as from the date of birth, the date of the administrative or court decision on foster care or the date of the court resolution whereby adoption is granted.

Apart from these more common cases, it is necessary to be ready for any unusual case (a mother who has a professional activity that does not include her in the Social Security System, cases of multi-employment, maternity leave extended because the child has been hospitalised, etc.).

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If the mother does not work, when does paternity leave begin?

In cases of birth, if the mother does not work there is no possibility of suspending her work activity, wherefore it will be presumed that the leave periods of the mother have existed for the purpose of the  paternity leave, which  much start:

• If it concerns parents to whom the ET  is applicable, as from the end of the paid leave for the birth of the child until the end of the suspension of the employment contract due to maternity, or immediately after the end of said suspension. 
• If it concerns parents included within the field of application of Special Schemes, as from the day that the child is born until the end of the suspension of the contract due to maternity, or immediately after the end of said suspension.
• If it concerns parents included within the field of application of the  Basic Statute of Civil Servants, as from the very day that the child is born. 

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If the mother has a professional activity that does not permit her to be included in the Social Security System, when can paternity leave begin?

In these case, the other parent, if covered by the WS, has the right:

• First to paternity leave, which will start immediately after the allowed leave.
• Then to maternity leave.

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How much is it?

The benefit is equivalent to 100% of the regulating base (for temporary disability for common contingencies), using the date of the causal event as the reference point.

The corresponding social security contributions and income tax (IRPF) withholding will be deducted from the benefit.

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Is it possible to continue collecting paternity benefits if a work contract expires?

If the worker takes paternity leave and his work contract expires during this time for any of the reasons mentioned in point 1 of art.  128 of the GLSS:

• The paternity benefit will still be given until it ends, at which time he will change to being legally unemployed and receive, if the necessary requirements are met, the corresponding benefit.
• In this case, the time he would have been on paternity leave is not discounted from the period for receiving contributory level unemployment benefit.

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If paternity leave starts while unemployed and collecting unemployment benefits, is it possible to collect paternity benefits?

When the worker is receiving contributory unemployment benefits and changes to paternity:

• His unemployment benefits and Social Security contributions are suspended and he collects paternity benefits for the appropriate amount (100% of the regulating base), which are managed directly by his managing body (INSS or ISM).
  
• When paternity benefits end, unemployment benefits will begin again and continue for the time left to collect them and at the amount that was being paid when they were suspended.

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Can a worker go back to work before the benefits end?

If the worker who is collecting the benefit goes back to work voluntarily before the end of the maximum period of paternity leave, the benefit ends.

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Is paternity compatible with the maternity benefit?

Paternity leave is incompatible with maternity leave when one parent takes all the maternity leave for adoption or foster care, where only one of the parents can take them both.

It is compatible in the following circumstances:

• With the 10 weeks that the parent has a right to for having given the biological mother the 42 days of non-contributory maternity leave.
• With maternity leave if this was shared.
• When the whole of the maternity leave is taken by the other parent because the mother cannot suspend her professional activities and have a right to benefits (private insurance scheme).
• When the whole maternity leave is taken by the other parent because the mother has died.

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