Social Security

Protected Situations

The following situations are considered to be protected statuses, during periods of leave and authorised time off taken due to the following circumstances:

• Biological maternity, including deliveries that take place after more than 180 days of foetal life, whether the foetus is stillborn or born alive.

• Adoption and foster care, whether pre-adoptive, permanent or simple, in accordance with the Civil Code or the governing civil laws in the |CCAA , as long as, in this latter case it is not for less than 1 year, and although said foster care may be temporary, of:
• Children under 6 years of age.
• Disabled children over 6 but under 18 years of age or children who, because of their personal circumstances and experiences or because they have come from abroad, have special difficulties integrating into society or the family, duly certified by the competent social services. For these purposes, they will be defined as disabled if they are assessed as having a degree of disability greater than or equal to 33%.
The age of the minor will not be taken into account with regard to people included in the General Scheme of the Social Security and the scope of application of the EBEP.

 The legal institutions declared by foreign court or administrative rulings, the purpose and legal effects of which are those provided for adoption and permanent and simple pre-adoptive foster care of a duration of no less than 1 year, irrespective of its name, are considered to be legally equivalent.

Other forms of foster care different to the aforementioned are not considered to be legally equivalent to permanent and simple pre-adoptive foster care.

• Guardianship of a minor by appointment of an individual, when the guardian is a family relative who, in accordance with civil law, may not adopt the minor, as long as the guardian and the ward live together, under the same terms of age as with adopted or fostered children.  

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Beneficiaries

For the purposes of the contributory subsidy for maternity:

• The beneficiaries will be employed or self-employed workers, including workers on training and part-time contracts, irrespective of their sex, who take leave for the legally established periods for maternity, adoption and foster care, provided that they meet the necessary requirements.

• If leave is taken either simultaneously or successively by both parents, adoptive parents or foster parents, both will be beneficiaries, provided that they meet the necessary requirements.

• In the event of birth, if the mother dies, irrespective of whether or not she has a job, the other parent will be entitled to the benefit for the corresponding time, provided that they meet the necessary requirements. In these cases, receiving the benefit is compatible with the entitlement to the paternity benefit.

• In the case of childbirth, if the working mother does not fulfil the required contribution period and she is granted the non-contributory maternity benefit, the other parent may receive  the contributory benefit for the corresponding leave period, provided that they meet the necessary requirements. This subsidy is compatible with the paternity leave subsidy.

• In the case of childbirth, if the self-employed working mother was included, due to their job, in the social welfare mutual society established by the corresponding professional association:
  • If she is not entitled to benefits because maternity protection is not included in the mutual insurance entity, the other parent may receive the maternity leave subsidy, as long as they meet the established requirements and take the corresponding leave during the period that would have corresponded to the mother. This subsidy is compatible with the paternity leave subsidy.
  • If, for reasons against her will, she did not meet the established requirements for granting the benefit covered by the mutual insurance entity, despite having chosen to include protection for maternity leave as from the moment that she could exercise the option, the other parent may receive the subsidy under the same terms as in the preceding paragraph.
  • If she were entitled to maternity benefits in the private insurance scheme (regardless of the duration or amount thereof), or if she did not become entitled to this right as a result of not having voluntarily included the coverage of this benefit, the other parent will not be entitled to the subsidy in the Social Security system.
• If the mother was not entitled to benefits because she was not included in the RETA or an alternative social welfare mutual society, the other parent may receive the benefit provided that they meet the necessary requirements and take the corresponding leave, for the time that the mother would have been entitled to. This subsidy is compatible with the paternity leave subsidy.

For the purposes of the special subsidy for multiple childbirth, adoption or foster care:

The beneficiary will be whoever, in turn, is the beneficiary of the cash benefit for maternity, as long as they enjoy a leave of 6 weeks immediately after the multiple birth, adoption or foster care, although the former may only be received by one of the parents or foster parents, which, in the case of childbirth, will be determined at the mother's option, or in the case of adoption or foster care, by agreement between the interested parties.

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Requirements

• Being affiliated and registered or in a situation similar to registration. 

• Having covered a contribution period of:
  • If the worker is under 21 years of age on the date of the birth or on the date of the administrative or legal decision granting foster care or the legal ruling granting adoption, the minimum contribution period will not be required.
  • If the worker is between 21 and 26 years of age on the date of the birth or the date of the administrative or legal decision granting foster care or the legal ruling granting adoption:
    • 90 days within the 7 years immediately prior to the moment when the leave starts or, alternatively,
    • 180 days of contributions in all the worker's working life prior to that date.
  • If the worker is over 26 years of age on the date of the birth or the date of the administrative or legal decision granting foster care or the legal decision for adoption:
    • 180 days within the 7 years immediately prior to the moment when the  leave starts or, alternatively,
    • 360 days of contributions in all the worker's working life prior to that date.

In the event of birth and exclusively applicable to the biological mother:

The age indicated in the preceding sections will be the age that she has reached at the time that leave starts, thereby using the time of birth as the reference for the purpose of accrediting the corresponding minimum contribution period, if applicable.

If the female worker has started the leave period before the birth and, having been granted the right to the benefit while using the probable date of birth as the reference, does not accredit the minimum required contribution period once the birth occurs, then the benefit will expire but the benefits received up to that time will not be considered undue. In these cases, the non-contributory benefit for the appropriate period will be granted, starting from the birth.

Cases of international adoption/foster care with prior travel to the country of origin of the adopted child:

When the adopting parents take the suspension period provided for in Article 48.4 of the |ET , the indicated age will be the age that they have reached at the time that leave is started, which can begin being taken up to 4 weeks before the ruling granting the the adoption, and thereby taking as a reference, the time of the ruling for verifying if the minimum required contribution period has been accredited.

When the adoptive parents are included under Article 49. b) of the EBEP , the age will be the age they will have reached at the time that the leave for adoption or faster care starts,  which can begin to be taken up to 4 weeks before the ruling granting the adoption or before the administrative or legal decision granting foster care (after using up, if applicable, the leave of 2 months with the entitlement to receive basic remuneration), thereby taking as a reference  the date of the ruling or the administrative or legal decision to verify if the minimum required contribution period has been accredited.

In the referenced events in which the entitlement to the benefit had been at the start of the leave period, thereby taking into account the 4 weeks in which it can be taken early:

• If, once the legal or administrative resolution is issued, the required contribution is not accredited, the subsidy will expire and the benefits received up to that time will not be considered undue.
• If, once the 4-week period has elapsed, there has still not been a legal or administrative ruling, the Managing Body may provisionally suspend receipt of the benefit until the time that said ruling is issued.
• If the international adoption or foster care did not eventually take place, the interested parties will not be bound to refund the benefits received up to the time of denial or, if applicable, up to the time when the payment thereof had been suspended, due to the lapse of the 4-week period in accordance with the preceding paragraph.

Considered as effective contribution periods:

The amount of maternity or paternity leave that remains at the end of the work contract or that begins while collecting unemployment benefits, will be considered to be a period of effective contribution for the purposes of the corresponding Social Security benefits for retirement, permanent disability death and survival, maternity and paternity.

In the case of workers on part-time contracts:

To certify the contribution periods, only the contributions made based on regular and overtime working hours are counted, calculating the equivalence in theoretical days of contributions:

1. The number of hours effectively worked will be divided by 5, equivalent to the daily calculation on 1826 annual hours.
2. The 7-year period within which the 90 or 180 required days of contributions must be included will be increased in inverse proportion to the difference between the working day actually worked by the worker and the regular working day in the corresponding activity, and exclusively in relation to the periods in which, during said period, a shorter working day than the regular working day was worked.
3. A fraction of a day, when appropriate, is calculated as a full day.

In the case of workers included in the Special Scheme for Domestic Employees, from 2012 up to 2018, the hours actually worked in this scheme will be calculated according to the contribution bases referred to in numbers 1, 2 and 3 of paragraph 2.a) of the 39th Additional Provision of Law 27/2011, divided by the amount set for the minimum hourly base in the General Scheme by the LPGE for each of said financial years.

To this end, periods of |TD, risk during pregnancy or breastfeeding, or maternity leave, during which the part-time contract remains in force, as well as periods for which the worker is receiving unemployment benefits due to a suspension or expiry of a part-time contract, will be considered in the same way as the period prior to the medical leave, rest period, suspension or expiry of the contract, respectively.

The calculation for periods that are legally assimilated as contributory periods and take place after a part-time job, will be the same as that used for the last period worked.

When a worker holds more than one part-time job at the same time, the theoretical contribution days that have been certified for each activity will be added up, both for multi-employment and multi-activity situations, in which reciprocal calculations must be applied.

Under no circumstances will it be possible for the calculation to include a number of days that exceeds what would have been the case if the worker had been employed full-time.

These particular cases will not be applied to workers contracted for a full working day who, nevertheless, enjoy periods of maternity leave under the part time working day scheme.

In the event of multiple employment or multiple activity:

The beneficiary will receive the maternity leave and benefits in each of the jobs, independently and without interruption, according to applicable legislation in each case.

When, in cases of multiple activity, workers prove the conditions for accessing the benefit in just one of the schemes, a single benefit will be granted, and only the contributions paid into said scheme will be calculated. If the requirements are not met for any of the schemes, all the contributions made into those schemes will be added up, as long as they do not overlap, and they will cause entitlement to the subsidy in the scheme in which more days of contributions are accredited. If in the end, even when totalling the contributions, they are not sufficient for entitlement, the non-contributory maternity benefit will be granted.

In the event that shared leave is taken, the number of days taken in the two jobs or activities by the beneficiary who is in a situation of multiple employment or multiple activities must coincide.

• Being up to date with contribution payments, for which the workers are directly responsible, even if the the benefit is recognised as a consequence of a reciprocal contribution calculation in a scheme of employed workers.
  
  For these purposes, the payment request mechanism provided for in |Art.  28.2 of Decree 2530/1970, of 20th of August will be applied, no matter which Social Security Scheme the interested party belongs to when he or she receives the benefit or has reason to receive it.

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Situations assimilated to affiliation

Assimilated contributor situations include:

1. The legal status of totally unemployed, for which contributory benefits are received.
   
   
2. The month following the end of a public post or the end of holding a post representing the public or provincial, autonomous or national level trade union function, which caused a forced leave or equivalent situation, during which the return to work must be requested.
   
   
3. Transfer of the employee by the company outside of Spain.
   
   
4. For artists and bullfighting professionals, the days on which contributions are made under their specific contribution regulations will be considered to be effective contribution days and to have affiliation status, even if they do not correspond to days on which services were provided.
   
   
5. The special convention for members and senators of the Spanish Parliament and members of the European Parliament, and the special convention for members of the Parliaments and Governments of the Autonomous Communities.
   
   
6. The considered period of effective contribution regarding employed and self-employed workers who are the victims of gender violence.
   
   
7. The situation of the worker during the period corresponding to paid annual holidays that were not taken before the contract ended.
   
   
8. The periods between working seasons of permanent-intermittent workers who do not receive contributory unemployment benefits, without prejudice to receiving benefits when they resume their activity.
   
   
9. In the Special Agricultural Scheme, the situation of moving abroad for work reasons (Article 71 of Decree 3772/1972, of 23 December).
   
   
10. Maternity preceded by temporary disability (TD). When there is no continuity solution between the expiration of the TD due to medical discharge and the start of the maternity situation, either because the medical discharge for TD and the start of maternity leave occur on the same day, or because the latter takes place on the day following the former.
    
    
11. Maternity caused by an extension of TD effects.

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