Paternity

Who can be recipients?

Workers belonging to the general and to the special Social Security systems, whatever their gender, who take the leave provided for under law for the birth adoption or foster care of a child (preadoptiive, permanent or simple), provided that they fulfil the requirements.

In the case of birth, suspension only corresponds to the other parent. In cases of adoption or foster care, suspension will only correspond to one of the parents, at their choice; however, when one of the parents takes the whole of the maternity leave, the right to suspension for paternity can only be exercised by the other.

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

For salaried employees for whom the Workers' Statute is applicable and self-employed workers belonging to the special Social Security systems to be entitled to benefit, the child adopted or taken into foster care must be less than 6 years of age. However, those children aged over 6 and under 18 who are disabled or who, due to their personal circumstances or experiences or because they come from abroad are duly accredited by the competent social services as having special social and family integration difficulties, also make the worker entitled to benefit. The child adopted or taken into foster care is considered to be disabled when disability is graded at 33% or over.

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 required is 180 days within the 7 years immediately preceding the date of suspension or, alternatively 365 days during the whole of the worker's working life prior to said date.

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.

How long does it last?

Employees for whom the |WS is applicable will be entitled to a suspension of their contract for 4 consecutive calendar weeks, extendible by a further 2 days for each child from the second child in the case of multiple births, adoptions or children taken into foster care; this suspension may be taken full-time or part-time for a minimum of 50% of the work hours, if there is a prior agreement to this effect between the employer and the worker.

4 consecutive calendar weeks for the birth, adoption or foster care of one or more children, for people belonging to the General Social Security System who come under the Basic Public Employee Statute.

Self-employed workers belonging to the various special Social Security systems are considered covered in cases where activity termination periods overlap, in terms of duration or distribution, with the leave periods set for salaried employees. They may likewise take part-time leave, in which case benefits and reductions in activity will be 50%.

If there is only one parent, is it possible to add paternity leave to maternity leave?

When there is only one parent, adopting parent or foster carer, paternity leave cannot be added to maternity leave.

When does paternity leave begin?

Generally speaking, salaried employees included in the Workers' Statute may exercise this right or good when the remunerated leave provided for by law or convention (minimum 2 days) due for a birth, adoption or foster care has concluded and until the contract suspension for maternity ends; or alternatively, immediately after said suspension for maternity ends.

For the self-employed belonging to special systems, leave may begin on the day the child is born, or the date the administrative or legal authorities rule on foster care or the legal resolution authorising adoption, until the contract suspension for maternity ends; or alternatively, immediately after said suspension for maternity ends.

For workers included in the Basic Public Employee Statute, leave will begin on the day the child is born, or the date the administrative or legal authorities rule on foster care or the legal resolution authorising adoption, unless applicable legislation foresees that said leave be organised in other terms.

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

In the cases of births, if the mother does not work, maternity leave periods are presumed  to have existed, for the purposes of acknowledging the time the other parent has for paternity leave, exactly the same as in the general case.

If the mother undertakes a professional activity that does not give rise to her inclusion in the Social Security System nor in an alternative Mutual Insurance Society, when can paternity leave begin?

In these cases, if the other parent  does meet the requirements and takes the corresponding leave periods, he will be entitled:

  • First to paternity leave.
  • Then maternity leave.

How much is it?

Paternity benefit will consist of a subsidy equivalent to 100% of the benefit calculation base set for temporary disability benefit for common disease or illness, the reference for which is the date on which said leave starts.

If applicable,  the corresponding social contributions and withholdings for Personal Income Tax (IRPF) will be deducted from this amount.

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

If the worker is on paternity leave and during this time his work contract is terminated, in accordance with the provisions of article 222.2 of the General Social Security Act (LGSS):

  • He will continue to receive paternity benefit until this expires, whereafter he will be considered legally unemployed and, if he meets the necessary requirements, he will receive the corresponding benefit.
  • In this case, the time he has been on paternity leave will not be discounted from the period for which he is entitled to receive unemployment benefit.

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

When the worker is receiving contributory unemployment benefit and he goes on to paternity benefit:

  • His unemployment benefit and Social security Contributions will be suspended and he will go on to receive the amount of paternity benefit corresponding to him (100% of the benefit calculation base), which will be managed directly by his Managing Entity (the National Social Security Institute (INSS)  or the Social Marine Institute (ISM)).
  • Once his paternity benefit expires, his unemployment benefit will resume for the period remaining and at the same rate as at the time it was suspended.

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

If the worker claiming benefit voluntarily goes back to work prior to fulfilling the full paternity leave period, the benefit is terminated.

Are paternity benefits compatible with maternity benefits?

Paternity is incompatible with maternity for birth, adoption or foster care, when there is only one parent or there are two and the applicant has used up all their maternity leave in cases of adoption and foster care.

It will be compatible in the following cases:

  • With the period the other parent would have been entitled to due to the biological mother having been granted a non-contributory maternity benefit. 
  • When maternity leave is shared. 
  • With the other parent's full maternity benefit, in the event that the mother undertakes a professional activity that excludes her from the Social Security system or any other alternative mutual benefit system.
  • With the other parent's full maternity benefit if the mother dies.
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