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:

• Birth of a child.

• 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 child will not be taken into account, when dealing with persons who are part of the General Scheme of the Social Security and included within the scope of application of the EBEP .

 Court rulings or administrative decisions made by foreign legal institutions, whose purpose and legal effects are the same as those provided for adoption or pre-adoptive foster care, permanent or simple, of a duration no less than 1 year, whatever their name may be, are considered to be legally equivalent.

Other types of foster care that are different to the aforementioned types, are not considered to be legally equivalent to pre-adoptive, permanent or simple 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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Recipients / requirements

Employees or self-employed workers of either sex, including those with training or part-time contracts, who take a period of leave for the birth of a child, adoption or foster care as described in the previous section,  as long as they meet the followingrequirements:

• To be affiliated and have active or assimilated contributor status in any scheme of the Social Security System.
• Having contributed for a minimum period of:

• 180 days in the 7 years immediately prior to the date of suspension or authorised leave, or alternatively,
• 360 days in their entire employment history prior to the aforementioned date. 

Considered as effective contribution periods:

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

In the case of workers on part-time contracts:

To accredit 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 180 required days of contributions must be included, will be increased in inverse proportion to the difference between the working hours actually carried out by the worker and the regular working hours for the corresponding activity, and exclusively in relation to the periods in which, during said period, shorter working hours than the regular working hours were carried out.
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 of legally-assimilated contribution periods which arise from periods of part-time work, will be carried out in an identical manner to that used in relation to the last period worked.

When more than one part-time activity is carried out simultaneously the theoretical days of contributions accredited in the different activities, both in multiple employment and multiple activity situations in which reciprocal calculation must be applied.

Under no circumstances may a number of days of contributions higher than that the number that would apply if the work had been done full-time be calculated.

These particular conditions will not apply to workers on full-time contracts who, nevertheless, take periods of maternity leave on a part-time basis.

• Being up to date with the 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 for employees.
  
  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.

• In the event of multiple activity:
  • Workers may receive the benefit included in each of the Social Security schemes in which they meet the established requirements.
  • If workers certify the conditions for accessing the benefit in just one of the schemes, a single benefit will be granted and only the contributions paid in to said scheme will be counted.
  • 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 give entitlement to the benefit in the scheme in which most days of contributions are accredited.
• In the case of multiple employment:
  
  The worker may be entitled to receive the benefit in each job, if they take the corresponding period of leave.

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Determination of the Beneficiary

• In the event of birth:
  
  
  • The entitlement corresponds exclusively to the other parent, if the established requirements are met and the period of suspension or authorised leave is taken.
    
    
  • If the mother does not have the right to suspend her activity and keep her right to maternity benefits, in accordance with the regulations that govern said activity, the other parent can receive paternity benefit, which is compatible with maternity benefit, if the requirements for accessing both benefits are met and the corresponding periods of leave are taken.
  
  
• In the event of adoption or foster care:
  
  
  • The entitlement will be for just one of the parents, chosen by the interested parties.
    
    
  • Nevertheless, when the period of suspension or maternity leave is taken entirely by one of the parents and, as a result, they receive all of the corresponding benefit, the paternity benefit will be granted to the other parent, if they meet the necessary requirements.
  
  
• In the event that there is just one parent, adoptive parent or foster parentand they receive maternity benefit, they may not also accumulate the paternity benefit.
  
  
• In the event that they take shared periods of leave or maternity leave, the status of being a beneficiary of paternity benefit is compatible with receiving maternity benefit, as long as the beneficiary meets all the necessary requirements.
  
  
• When the mother resides in a foreign country and the birth of the child occurred outside Spain, the other parent may receive paternity benefit, if they meet the requirements and take the period of leave.

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Situations assimilated to affiliation

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 situation of the worker during the period corresponding to paid annual holidays that were not taken before the contract ended.
   
   
6. Periods considered as effective contribution periods for employees or self-employed workers who are victims of gender-based violence, when, in the event of adoption or foster care, the maternity benefit is received by the other parent.
   
   
7. The situation of expatriation due to work in the Special Agricultural Scheme, under the terms governed by article 71 of the General Regulations for the Special Agricultural Scheme of the Social Security, approved by Decree 3772/1972, of 23 December
   
   
8. The special agreement with the Social Security for deputies and senates of the Spanish Parliament and members of the European Parliament, and the special agreement for members of the Parliaments and Governments of the Autonomous Communities, governed by articles 11 and 12 of Order TAS/2865/2003, of 13 October.
   
   
9. 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.

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Commencement of the Right / Duration

Beginning of the right to receive benefits:

Workers will gain entitlement to the benefit on the same day that the period of suspension or authorised leave begins, in accordance with the applicable legal provisions.

• Workers included in the scope of application of the |ET:
  • During the period from the end of the authorised leave for the birth of a child, legally or contractually provided for, or from the court ruling through which the adoption was granted or from the administrative decision or court ruling on foster care, up to the end of the contract suspension due to birth, adoption or foster care, or
    
  • immediately after the end of said suspension, as long as, in all cases, the corresponding effective period of leave is taken.
• Persons included in the General Scheme and within the scope of application of the  EBEP
  • As from the start date, of the administrative decision or court ruling on foster care or the court ruling granting adoption, except when the applicable legislation sets out the time for taking the leave in accordance with other terms.
  • As an exception, in the event of premature births or when children are kept in hospital for any other reason, they may start receiving the benefit as from the discharge of the child from hospital.
• In the event of multiple employment or activity:

• In the event of birth, if the mother does not have the right to suspend her activity and keep her right to maternity benefits, in accordance with the regulations that govern said activity, the other parent will receive the paternity benefit immediately after the paid authorised leave, legally or contractually, to which they are entitled and, subsequently, receive the maternity benefit.

• In the event of birth, if the mother does not work and periods of maternity leave are not applicable, it will be assumed that these periods do exist for the purposes of paternity leave which, therefore, may be started in the same way as if the mother were a worker with the entitlement to take leave.

• In the event that extensions in the periods of leave or authorised time off are applicable, paternity benefit can begin at the end of said additional periods or before they come to an end.

• When maternity benefit is being received in a part-time working day schedule, paternity benefit can be received, either while receiving full maternity benefit or immediately after it expires.

The benefit will not be granted if the child or foster child dies before the start of the suspension or leave. Once the benefit has been granted, it will not be terminated even if the child or foster child dies.

Duration:

It will be equivalent to the period of leave taken, in accordance with the following terms:

• 13 uninterrupted calendar days, which can be extended for a further 2 days for each additional child as from the second, in the event of multiple birth, adoption or foster care, for workers to whom article 48 bis of the |ET is applicable. Taking these periods of leave is independent of shared time for maternity leave.

• 15 uninterrupted calendar days, during paternity leave for the birth, fostering or adoption of one or more children, in accordance with the provisions in article 49) c) of the EBEP for persons in the General Scheme and to whom the provisions in said Statute are applicable.

• 20 uninterrupted calendar days, irrespective of the applicable legislation, if the new birth, adoption or foster care takes place in a large family or a family that, for this reason, acquires said status, or if the family already included a disabled person with a degree of disability greater than or equal to 33%. 
  
  In the event of multiple birth, adoption or foster care, it will be extended for 2 further days for each additional child as from the second.
  
  The increase in duration will take place only once, and will not be cumulative if two or more of the aforementioned circumstances occur simultaneously.
  
  For the purposes of considering large families, the provisions of Law 40/2003, of 18 November, on the protection of large families, shall be applicable.
  
  The two parents and the children of both, common and not common, who live with them.

• 20 uninterrupted calendar days, irrespective of the applicable legislation, if the new born, adopted or fostered child has a degree of disability greater than or equal to 33%.

This period may be taken in a full working day or partial working day schedule.

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Financial Benefits / Amount

The economic benefit consists of a subsidy equivalent to 100% of the corresponding regulating base.

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Paternity, temporary disability and contract termination

If the beneficiary has come to the end of their paternity leave and is unable to work:

• They will be deemed to be in a situation of Temporary Disability (TD), starting from this time, if they meet the requirements and there is no continuity solution, the payment of the benefit corresponding to the new contingency and the calculation of the duration of said situation, completely irrespective of the periods of paternity leave.

• If the employment contract is cancelled while on paternity leave, the interested party will continue receiving paternity benefit until it expires, thereby passing, in accordance with article 222.2 of the LGSS, to a situation of legal unemployment  and to receiving the appropriate unemployment benefit and, where appropriate, TD benefit under the terms provided for in article 222.3 of the aforementioned Act.

If TD has started before paternity leave:

• Under the scope of application of the |ET, the TD processes will continue to be governed by their own terms until the leave starts. If the paternity benefit has been fully received and the previous TD continues, the interrupted calculation and the payment of the benefit corresponding to this contingency will be resumed.

• Under the scope of application of the EBEP, the TD process will be interrupted and the paternity leave will start as from the date of birth of the child, their discharge from hospital, the administrative decision or court ruling on foster care, or the ruling granting adoption. If this leave has finished and the previous TD situation continues, the interrupted calculation and the payment of the benefit corresponding to this contingency will be resumed.

• If the interested party finds themselves in a situation of extension of TD effects provided for in article 131 bis.3 of the LGSS, they can gain entitlement to the paternity benefit if they meet the requirements to do so, thereby interrupting the calculation of the situation of extension of effects, which will be resumed, if applicable, once the paternity benefit has expired.

• The cases described in the foregoing paragraphs will not stop the process that, where appropriate, had been started for the purposes of declaring permanent disability. The granting of the entitlement to a pension arising from said disability will cancel the paternity benefit, without prejudice to the fact that, in order to fix the financial effects of the pension, the established regulations relating to TD benefit will be applicable. 

If TD has originated during the contract/activity suspension or paternity leave:

• The entitlement to TD arising from common or occupational contingencies during said period will not be granted, except in the case described in the following paragraph.

• If the temporary disability process begins while receiving paternity benefit in a partial working day schedule, irrespective of the contingency from which it arises:

• Both benefits may be received simultaneously, in accordance with the applicable legal framework. 
• The regulatory base will be calculated using the partial working day contribution base, which is compatible with paternity benefit.
• For self-employed workers, the regulatory base for TD benefit will be reduced by 50% where appropriate.
• If the paternity benefit expires and the TD situation remains, the TD benefit will continue at the amount corresponding to the full working day schedule, although for the purposes of calculating its duration and percentage, the date of discharge from hospital in the partial working day schedule will be taken as the reference point. 

Contract termination for workers whose situation of TD arising from common or occupational contingencies is interrupted due to beginning paternity leave:

Termination of a contract after the period of paternity leave has started:

• Paternity benefits are continued until the end of this situation. If the contract termination occurs during periods of leave in a partial working day schedule, full paternity benefit will be received as from the date when said contract termination occurs.

• If the paternity benefit has expired and the previous TD situation continues, the interrupted calculation and the payment of the benefit corresponding to this contingency will be resumed, in accordance with the provision in article 222.1 of the LGSS.

Termination of a contract before the period of paternity leave has started:

• The worker will gain entitlement to paternity benefit from the start date of this situation, thereby interrupting the TD and the payment of the corresponding benefit and replacing it with paternity benefit.

• The worker will also gain entitlement to paternity benefit when, between the expiry of the TD situation due to medical discharge and the start of the paternity situation there is no continuity solution, or because the medical discharge for TD and the start of paternity leave occur on the same day, or when this take place on the following day.

If the worker is taking paternity leave and their contract is terminated during that time:

• 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.

If the worker is receiving full unemployment benefit and changes to a situation of paternity:

• Unemployment benefits will be suspended as well as Social Security contributions and he will change to receiving paternity benefits, managed directly by his Management Body.

• After paternity benefits end, unemployment benefits will begin again and continue for the period that remained and at the same amount as at the time of suspension.

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Refusal and Suspension / Termination

The entitlement to the benefit may be refused, cancelled or suspended for the same reasons as those established for maternity benefits.

The benefit will be terminated due to:

• The expiry of the established time periods.
• The voluntary return to work or activity before expiry of the maximum time period.
• Gaining entitlement to the retirement or permanent disability pension.
• Death of the beneficiary.
• The end of the adoption or foster care.

If the death of the child or foster child occurs while receiving the benefit, the benefit will not terminate; if the death occurs before the start of the suspension or authorised leave, the benefit will not be granted.

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Management / Payment

Management:

• The management of the benefit is the responsibility of the National Institute of the Social Security (INSS) or the Social Marine Institute (ISM), if the workers are included in the scope of application of the Special Scheme for Sea Workers. 

• The competent bodies of the Autonomous Communities, to which the duties relating to the classification of the degree of limitations in activity and disability have been transferred, and the Provincial Directorates of the Institute for Social Services and the Elderly (IMSERSO) in the cities of Ceuta and Melilla, in whose territory the interested parties reside, are responsible for determining the degree of disability of minors over the age of 6 in the event of adoption or foster care.

• The authority to determine difficulties in integrating into society or the family of children over 6 years of age in cases of adoption and foster care belongs to the competent Public Institution that deals with the protection of minors.

Payment:

• Will be made directly by the Managing Body, without there being any management collaboration formulas among companies.

• Will be made in a single payment, even when the corresponding period of leave or authorised time off has not finished.

• At the time of paying the benefit, the following amounts will be deducted from its total amount:

  • The amount increases to the total sum of the applicable worker contributions to Social Security, unemployment and occupational training, where appropriate, to be paid into the TGSS . The employer is required to pay only the contributions to Social Security and any other joint collection concepts that may be required.
  • The withholding for IRPF .

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Recognition of the right to benefits

Benefit application:

• The procedure for granting the entitlement begins upon request by the interested party, by application to the competent Provincial Directorate of the relevant Managing Body, according to the scheme they are included in.
  • The application must be submitted using the standard forms, and it must contain the data and circumstances set forth in |Art. 70 of Law 30/1992, of 26 November, of the Legal Framework for Public Administration and Common Administrative Procedure.

• Specifically, it must contain the reason for the application, the start date of the suspension or leave, as well as the information on the company(ies) if the application is an employee.

• The application must be sent in together with the specified documents, except for those that have already been provided relating to the processing of maternity benefits for the same children or foster children.

• The Managing Body may start, on its own initiative, the procedure for granting the benefit, when it has the necessary information to do so, and must inform the interested party of this situation within a period of 15 days counting from the day after the triggering event.

Resolution and notification:

• The Provincial Director of the Managing Body where the application has been submitted will make an express decision and inform, within a period of 30 days counting from the receipt of the application from the interested party, of the granting or refusal of the entitlement to the financial benefit.

• Nevertheless, the benefit may be granted by provisional decision using the contribution base included in the system's corporate databases insofar as it does not include the contribution base for common contingencies from the month prior to the leave, at which time, the final decision will be made.

• As an exception, in the event that the activity in the company had been started in the month prior to the triggering event, a certificate must be provided to the company stating the relevant contribution base, which will be the base that is taken into account for calculation purposes. The procedure will be the same, when the worker has a part-time contract and it is not possible to calculate the regulatory base, or in the cases where the companies have been authorised by the General Treasury of the Social Security TGSS  to defer the payment of contributions until after the following month.

Expiry:

The entitlement to the benefit expires 5 years from the day after the date of the triggering event, notwithstanding the fact that the conditions that gave rise to the entitlement occurred within 3 months prior to the date on which the corresponding application was submitted.

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