Social Security

Protected situation

If a pregnant female worker, during the employment contract suspension period, has to change her job position for one that is compatible with her condition, under the terms provided for in article 26.2 of Law 31/1995, of 8 November, but this position change is not technically or objectively possible, or may not be demanded from her due to justified reasons, it will be considered to be a protected situation.

When the circumstances described in the aforementioned article 26 affect a female civil servant who is part of the General Scheme and included in the scope of application of the EBEP , then leave for risk during pregnancy will be considered to be a protected situation, for the purposes of the Social Security financial benefit.

When situations arising from risks or diseases that may have a negative impact on the health of the pregnant worker or her unborn child, are unrelated to agents, procedures or conditions of the job being carried out, they are not considered to be protected situations.

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Beneficiaries / Requirement

Female employees and female members of cooperative or employee-owned companies, in a situation of contract suspension or authorised leave due to risk during pregnancy, as long as they meet the following requirements:

• To be affiliated and have active contributor status in any scheme of the Social Security System, on the start date of the suspension. 
  • They are considered to have full rights if registered and affiliated, even if the employer has not fulfilled his obligations.
  • For bullfighting professionals, being included in the active census is equivalent to active contributor status.
  • Legal strikes or lockouts are considered to be a special contributor status.
• In the case of commercial representatives, it is also required to be up to date on all contribution payments on the date on which the causal event takes place. If they are not up-to-date, they will be advised of the need get up-to-date with contributions, as the payment of the benefit is dependent on the fulfillment of this obligation.

• In the case of female artists and bullfighting professionals, if they owe payments due to adjustments made at the end of their financial year, the actions mentioned in the previous paragraph apply to them as well.

• In the event of multiple activity:

  • If the risk situation affects all the activities carried out, the female worker is entitled to the benefit for each of the schemes, as long as she meets the requirements for each scheme independently.

  • If the risk situation affects one or more of the activities carried out by the female worker, she will only be entitled to the benefit in the schemes in which the risky activities are included.

  • Receiving the benefit will be compatible with continuing with those activities that the female worker had been performing or could have begun performing, as long as they do not pose a risk during pregnancy.

No minimum contribution period is required since it arises from occupational contingencies after 24/03/2007.

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Financial Benefits / Amount

The financial benefit consists of a subsidy equivalent to 100% of the corresponding regulatory base:

• The regulatory base shall be the same as that established for Temporary Disability (TD) arising from common contingencies, taking the start date of the contract suspension as the reference point.

• When the scheme in question does not include cover for occupational contingencies, the regulatory base will be equivalent to the base used for temporary disability arising from common contingencies.

In the event of multiple employment:

• When the suspension of the employment contract due to risk during pregnancy is declared for all the activities that the female worker performs simultaneously, for the regulatory base, all the contribution bases from the different companies will be calculated , and the maximum established limit for contributions will be applicable.

• If the suspension of the employment contract due to risk during pregnancy is declared for one or more of the activities carried out by the female worker, but not for all of them, when calculating the regulatory base only the contribution bases corresponding to the companies in which the suspension of the employment contract occurs will be used, and for these purposes the limit corresponding to the fraction or fractions of the maximum limit with which they have been allocated will be applicable. 

Female workers on part-time contracts:

• The new daily regulatory base will be the result of dividing the sum of the contribution bases certified with the company during the three months immediately prior to the start of the employment suspension, by the number of calendar days included in said period.

• If the female worker has been with the company for less time, the regulatory base will be the result of dividing the sum of the certified contribution bases by the corresponding number of calendar days.

Female workers on training contracts:

• The regulatory base will be 75% of the minimum contribution base in force.

Artists and bullfighting professionals:

• The regulatory base is the daily average that is calculated by dividing the sum of the contribution bases in the twelve months prior to the triggering event by 365, or the daily average of the certified contribution period, if this is less than one year.

Under no circumstances may the resulting daily average, when calculated on a monthly basis, be less than the minimum contribution base that, at any given time, corresponds to the professional category of the female worker.

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Acquisition of a right to benefits and duration

• The entitlement to the benefit begins on the same day that the employment contract suspension or leave due to risk during pregnancy starts.

• The benefit will be paid for the period of suspension or leave required to protect the health and safety of the female worker and/or her unborn child, and it will end on the day before the date on which the employment contract is suspended for maternity leave or the female worker returns to her previous job or one that is compatible with her condition.

• In the case of part-time workers, benefits will be paid during all natural days in which the contract is suspended due to risk during pregnancy, with the exception mentioned in the previous paragraph.

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Denial, Annulment and Suspension

The right to receive a subsidy may be denied, cancelled or suspended, if the beneficiary:

• Commits fraudulent acts in order to obtain or keep a benefit.

• Carries out any work or activity, whether as an employee or self-employed worker, except when provided for in the cases of multiple activity.

The entitlement to the benefit will be suspended for the periods between seasons for permanent-intermittent workers, as long as there is not a new call to work.

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Expiry

The right to a benefit expires due to:

• Suspension of employment contract due to maternity.

• Return of the worker to her former job or to another that is compatible with her condition.

• Expiry of the employment contract for reasons that are established by law.

• Abortion of the pregnancy.

• Death of the beneficiary. 

The female worker and the company will be required to inform the Managing Body or collaborating body of any circumstance that may imply the suspension or termination of the entitlement to the benefit.

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Temporary disability and risk during pregnancy

• When the female worker is in a temporary disability (TD) situation and during this situation they request the risk during pregnancy benefit, the benefit will not be granted, where appropriate, until the TD situation comes to an end due to any of the causes provided for in law or regulations.

• When the female worker is in a risk during pregnancy situation and during this situation they request the TD benefit, the benefit will not be granted, where appropriate, until the risk during pregnancy situation comes to an end, if at this time the necessary requirements for accessing TD are met.

• When the female worker is in a risk during pregnancy situation and during this situation their contract is terminated, due to any of the reasons provided for in article 208.1 of the LGSS , the benefit for risk during pregnancy will be cancelled, thereby becoming a situation of legal unemployment and to receiving, of the necessary requirements are met, the corresponding benefit.

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Management / Payment

• The management and payment of the financial benefit is the responsibility of the Managing Body or Mutual Society for Work-Related Injuries (WRI) and Occupational Diseases (OD) of the Social Security with which the company had agreed to cover occupational risks at the time of the contract suspension, irrespective of whether during this situation there is a change in the body.

• The payment of the benefit will be made by the Managing Body or collaborating body for the monthly periods that are due.

• 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 .

• The competent Managing Body can declare employer responsibility with regard to benefits, as well as the body that, where appropriate, has to pay them in advance.

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Recognition of the right to benefits

The Managing Body or Mutual Society for WRI and OD of the Social Security with which the company has agreed coverage for occupational contingencies is responsible for granting the benefit.

Initiation of the Procedure:

• The procedure is initiated upon the request of the female worker, by a report that must be requested from the Public Health Service doctor, in which the pregnancy situation and the probable date of birth is certified.

• Using the aforementioned report and a certificate from the company on the activity carried out and the conditions of the job position, the female worker will request the issuance of a medical certificate stating the existence of risk during pregnancy for the relevant Managing Body or collaborating body.

If the Managing Body or collaborating body considers that the situation of risk during pregnancy has not arisen, they shall refuse the issuance of the requested medical certificate, informing the female worker that they are not eligible to start the procedure for acquiring the corresponding benefit.

• Once the risk has been certified, if the change in job position has not been possible, the company will inform the affected female worker in a situation of contract suspension due to risk during pregnancy.

Benefit application:

• In order to gain entitlement to the benefit, the female worker must submit the application to the competent Provincial Directorate of the Managing Body in the province in which they reside or to the appropriate Mutual Society for WRI and OD.

• The application must be made on the official forms and contain the information and circumstances set out in |art.  70 of Law 30/1992 of 26 November on the legal framework for public administrations and common administrative procedures, plus the required documentation.

Resolution and notification:

The Provincial Director of the competent Managing Body will make an express decision and inform the interested party within 30 days, counting from the receipt of the application from the interested party.

If the entitlement to the financial benefit is not initially granted, because it does not fall within the protected situation, the interested party will be informed, as applicable, of the date after which the benefit can be granted, taking into account the medical certificate on the existence of risk and the development of the gestation, in relation to the specific risk associated with the job position. Therefore, a new application in these cases will not be necessary, with the only requirement being to provide the required documentation.

If there are any contradictions in the declarations and certificates submitted with the application, or there is any evidence of possible connivance to obtain the benefit, a report from the Inspectorate of Work and Social Security can be requested, in order to demonstrate its agreement or disagreement in relation to the measures adopted by the company, which may determine the entitlement to the benefit. The request for the report must be accompanied by the submitted documentation.

The report must be issued within a maximum of 15 days, after which, a decision can be made, without taking into account said report, in regard to the granting or refusal of the financial benefit. As an exception, in these cases, the 30 day deadline will be suspended until the report has been received by the Managing Body. 

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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Medical certification proving the existence of risk

At the |DDPP of the INSS for those that do not have their own medical services, the medical certificate stating the existence of risk will be issued by the Health Services Inspectorate of the Public Health Service or equivalent body of the Autonomous Communities that have taken on the transferred responsibility of health care.

Within the scope of application of the Social Security Special Scheme for Sea Workers, at the DDPP in which the ISM does not have its own medical services, the aforementioned medical certificate will be issued by the medical services of the INSS or, where appropriate, by the Health Services Inspectorate of the Public Health Service or equivalent body of the Autonomous Communities.

If the granting of the situation of risk during pregnancy or breastfeeding is applicable, the processing of this certificate will take priority and will consist of an original and two copies:

• The worker receives the original and a copy for the company or, where appropriate, for the head of the household.
• The other copy is retained by the medical service.

The Managing Body or collaborating body, responsible for the management and payment of the benefit for risk during pregnancy or breastfeeding, may request the initial assessment of the risk associated with the job position for the female worker, as well as the list of job positions exempt from risk.

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Documents which must accompany the application

PRESENTATION OF THE FOLLOWING ORIGINAL, VALID DOCUMENTS

1. Proof of the applicant's identity by means of the following valid documentation:

• Spanish citizens: National Identity Document (DNI ). 
• Foreigners:
  • Foreigner Identification Number (NIE) and passport or document/letter from country of origin (EU  , EES  and Switzerland).
  • Foreigner Identity Card (TIE), for citizens of all other countries.

PRESENTATION OF THE FOLLOWING ORIGINAL, VALID DOCUMENTS AND CERTIFIED TRUE COPIES OR COPIES FOR CERTIFICATION

2.  Documentation relating to contributions:

• Workers employed by another person in the General Scheme: company certificate correctly filled in.
• Workers employed by another person in the Special Agricultural Scheme: company certificate that has been filled out in accordance with the TC  2/8 from the month before the start of the suspension of the employment contract and pay slips from the previous three months (TC 1/9).
• For artists and bullfighting professionals: declaration of their activity (form TC 4/6) and receipts for their actions (form TC 4/5) if they were not previously presented at the Provincial Directorate or Administration of the General Treasury of the Special Security.
• Workers who are self-employed: Receipts for contribution payments for the last three months.
• Sales Representatives: Contribution payment receipts for the last three months (TC 1/3).

DOCUMENTATION DECLARING THE RISK

3. Medical report from the Public Health Service doctor who cares for the worker.(1)

4. Medical certificate issued  by the Medical Services of the Managing Body, according to the Body that covers the occupational risks of the company or self-employed workers, which certifies that the working conditions negatively influence the health of the worker or the foetus in the case of "risks during pregnancy" or that the working conditions negatively influence the health of the woman or the child in the case of "risk during breast feeding".

5. Declarations from the company or from the self-employed worker. (2)

• Jobs and activities carried out by the worker, conditions of the post, professional category and specific risk.

• Non-existence of another job compatible with her condition.

OTHER DOCUMENTATION:

6. Declaration of activity status, only applicable for workers in the Special Scheme for Self-Employed Workers.

7. Family Book, for benefits for "risk during breast feeding".

(1) It is not necessary to present this when a medical certificate that certifies the risk is presented, if this certificate has been issued by the National Institute of Social Security (INSS)

(2) In the case of members of cooperatives and employee-owned companies, the declaration should be issued by the managing director or company administrator.

In the case of workers included in the Special Regime for Domestic Employees, the declaration should be issued by the personal responsible for the family home.

This documentation must be presented at any of the Social Security Support and Information Centres.

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