Y SEGURIDAD SOCIAL
Commencement of the Right / Duration
The duration of the subsidy will be equivalent to the duration of the leave periods that are taken, in accordance with the provisions set forth in |Art. 48.4 of the |ET and in Article 49 a) and b) of the EBEP .
The leave periods can be taken by one or both parents, adopting parents or foster care parents, either full-time or part-time under the legally established terms.
When the subsidy is shared, each beneficiary will be paid during the part of the leave periods that have been effectively taken by each one of them. The subsidy can be received, in both cases, either simultaneously or successively with the other parent.
There will be a right to the subsidy as from the same day when the corresponding leave period starts:
In the case of maternity, from the delivery date or from the date on which the leave began, if prior.
If the mother dies , the right to receive this benefit will pass to the father, becoming effective on the day he is suspended from his activity.
In cases where the mother opts to grant the father up to 10 weeks of leave, the right to benefits will begin on the day the father's leave begins, and that date will coincide with the date chosen to start exercising this option.
ln cases of adoption or foster care, the worker may choose either as from the date of the legal decision on the adoption or as from the administrative or legal decision on the foster care, whether provisional or definitive, and the benefit may start to be received on the day after the interested party receives the corresponding document and is therefore permitted to take leave.
In cases of international adoption, when it is necessary for the parents to go to the country of origin of the adopted child, the benefits may begin up to 4 weeks prior to the court ruling granting adoption.
In general, the subsidy will have an uninterrupted duration of 16 weeks, except in the case of hospitalisation, when it will be extended in certain events:
- If it is a multiple birth, it will be extended 2 more weeks for each child after the second.
- In the event that the child is disabled, when the disability is assessed at a level of 33% or over, 2 additional weeks. In the event that both parents work, the additional period for receiving the subsidy will be distributed at the option of the interested parties, who may take it either simultaneously or in turn, always without interruption.
Said disability shall be certified if, by applying the assessment scale of degrees and levels of dependence, specifically for children under the age of 3, the assessment is at least grade 1 moderate, pursuant to RD 174/2011, of 11 February, approving the scale of assessment of dependency set forth in Law 39/2006, of 14 December, promoting personal independence and care for people in a situation of dependency.
When the degree of disability has not been determined in the case of newborns, a report recording the disability or possible disability from the Public Health Service (SPS), or from the physician of a public or private hospital endorsed by the SPS, will be sufficient.
- In cases of premature birth and in other cases when the newborn, due to a clinical condition, requires hospitalisation after birth and only in case of biological maternity, the leave may be interrupted or extended according to the following terms:
- The leave period and receipt of the subsidy may be interrupted, at the beneficiary's request, after completing the mandatory leave period for the mother of 6 weeks after birth. It may be re-started as from the hospital discharge date for the period remaining to be taken. It may be extended due to hospitalisation, even though the leave has been interrupted.
If the mother dies, the other parent may interrupt the leave, even during the 6 weeks following the birth.
The subsidy will not be interrupted if, during the period in which it is received, the contract is terminated or the activity is terminated.
- If hospitalisation has a duration of more than 7 days the duration will be extended by as many days as the newborn remains hospitalised after birth, with a maximum of 13 additional weeks.
This extension will take place even when the beneficiary may have decided to interrupt the leave according to the provisions set forth in the previous point.
Taking this additional period will correspond to the mother or, at her option, to the other parent, if they meet the necessary requirements and take the leave.
- For individuals included in the EBEP, the duration of the leave will be extended by as many days as the newborn is hospitalised, with a maximum of 13 additional weeks, regardless of the minimum duration of the hospitalisation period and its cause.
For the purpose of extending the leave period, in cases in which the newborn must remain hospitalised after birth, the hospitalisation that starts during the 30 calendar days after birth will be taken into account.
If applicable, the additional duration of two weeks due to the disability of each child will be added to the duration provided in events of multiple births, as well as the corresponding extension period in cases of hospitalisation of a newborn after birth. However, it will not be applicable to accumulate the hospitalisation periods of each child when said periods are simultaneous.
- In the event of the death of the child or deliveries more than 180 days after conception, even when the foetus does not meet the conditions to be regarded as a person set forth in Article 30 of the Civil Code, the duration of the cash benefit will not be reduced, unless the mother requested to go back to her job position once the 6 weeks had ended after the birth. In this case, the option exercised by the mother in favour of the other parent will be void.
Option in favour of the other parent:
The leave period may be taken only by the mother or, at her option, also by the other parent in the event that they both work, without prejudice to the 6 weeks immediately after birth, which are mandatory leave for the mother.
- In the event that both parents work, the other parent may receive the subsidy as long as the mother, when the leave period starts, has opted for the other parent to take a set uninterrupted part of the leave period after the birth, either simultaneously with the mother's leave or in turn.
The other parent can continue to take the maternity leave that was initially agreed even if the mother is temporarily disabled when she should go back to work.
- The option may be revoked by the mother if events have occurred that may make it infeasible to apply it, such as the absence, illness or injury of the other parent, family abandonment, separation, gender violence or other, similar causes.
- In the cases of birth, when both parents share the leave periods, it will not be applicable to recognise a subsidy for risk during breast feeding, to the extent that said periods have not been totally used up, regardless of the parent who took them.
In that case, the option exercised by the mother in favour of the other parent will be void, and the mother must once again take the remainder of the maternity leave when, having gone back to work, the existence of a risk during breast feeding appears, which may give rise to suspension of the labour relationship.
- In the event that the mother has multiple jobs or multiple activities, the choice that she may make for the other parent to take part of the leave must match the number of days given at the two jobs or activities.
- In the event that the leave periods are taken simultaneously, the total time of the leaves may not exceed 16 weeks or the corresponding weeks in cases when an extension is granted.
- If the other parent should die while enjoying their paternity benefits, and before the end of this benefit, the mother will be able to use the remaining portion of their time, up to the maximum allowed duration of these benefits, even if she has already returned to work.
16 uninterrupted weeks, which can be extended by:
2 weeks more for each minor after the second in cases of multiple adoption or foster care.
In the event that the adopted or foster care child is disabled, 2 additional weeks when the disability is assessed at a level of equal to or greater than 33%. In the event that both parents work, the additional period for receiving the subsidy will be distributed at the option of the interested parties, who may take it either simultaneously or successively, and always without interruption.
These periods can be taken under the full or part-time workday scheme, subject to agreement between the affected employers and workers.
In cases in which they both work, the leave periods can be distributed if the interested parties wish, who can take the leaves simultaneously or consecutively, if they are unbroken and within the established limits.
In the event of the death of the adopted child or foster care minor, the duration of the cash benefit will not be reduced, unless the adopting or foster care parents request to go back to work. In this case, if the leave period were distributed between both adopting or foster care parents, the part not used by one of them will not be accumulated to the period taken by the other.
The periods of suspension of the employment contract due to maternity, adoption or foster care, or due to paternity, can be taken either full-time or part-time. So that both maternity leave and paternity leave can be taken part-time:
An agreement must be reached beforehand between the employer and the affected worker. In the case of paternity leave, the work day worked part-time may not be less than 50% of the work day corresponding to a full-time worker.
This agreement may be reached either at the beginning of the corresponding leave period or at a later time, and it may be extended to the entire leave period or only part of it, without prejudice to the provisions set forth in paragraph two of the following point.
The right to maternity leave, either full-time or part-time, may be exercised by either of the parents, adopting parents or foster care parents, and if taking the leave period simultaneously or successively. In the case of a birth, the mother may not use this form of leave during the 6 weeks immediately following the birth, as this is the mandatory leave period.
Taking part-time maternity leave and paternity leave will comply with the following rules:
The leave period will be extended proportionally based on the length of the work day.
All the leave must be taken at one time. Once agreed, it can be modified only by means of a new agreement between the employer and the affected employee, at the initiative of the latter, for reasons related to her health or that of the child.
During part-time maternity leave or paternity leave, workers may not work overtime, except if necessary to prevent or repair accidents or other extraordinary and urgent damage.
The time during which the worker provides partial services will be considered effective work time and the working relationship is suspended for the remaining time. The rules established for part time contracts in |art. 12 of the |ET and its implementing regulations will not be applicable for this case.
If the worker is a beneficiary of the benefit for contributory level unemployment and combines it with part-time work, when the worker enters into situations of maternity leave or paternity leave, whether taken full-time or part-time, the benefit for unemployment will be suspended under the terms of article 284 of the Consolidated Text of theLGSS
Part-time maternity and paternity leaves will be incompatible:
- With the same workers simultaneously exercising the rights provided for in sections 4 and 4.bis of Art. 37 of the Statute of Workers' Rights and taking the reduced work day due to legal guardianship provided for in section 5 of the same article.
With exercising the right to leave to care for family members regulated in article 46.3 of the cited law.