Protected Situations / Beneficiaries / Requirements

Protected situations


Protected situations during periods of leave taken for said situations are as follows:

  • Biological maternity, including births and stillbirths that take place more than 180 days after conception.
  • Surrogacy
  • Adoption
  • Delegation of guardianship for pre-adoptive foster care
  • Temporary family foster care
  • Permanent family foster care
    All the above in accordance with the Civil Code or the civil laws of the |ARs  that govern it, provided that the duration of the temporary family foster care is no less than 1 year and even if said fostering arrangements are provisional, of:
    • Children under 6 years of age.
    • Children over 6 but under 18 years of age if disabled or who, because of their personal circumstances and experience 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 understood to have some form of disability if their degree of disability is classified at 33% or more.

    The age of the minor will not be taken into account in the case of people included in the General Social Security System and covered by the sphere of application of the EBEP.

    Comparable legal status will be given to any legal institutions declared so by foreign judicial or administrative decisions, the legal and practical purpose of which is to process cases of adoption and pre-adoption fostering, either permanent or simple, the duration of which is no less than 1 year, whatever their name.

    Forms of family fostering other than those mentioned above will not be given the same status.
  • Guardianship of a minor designated by an individual, when the guardian is a family member who, in accordance with civil legislation, may not adopt the minor, provided the guardian and the ward cohabit, under the same age terms as the adopted or fostered child.  

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.

Requirements

  • They must be affiliates and be affiliated or be in a situation similar to affiliation.
  • They must have paid contributions for a minimum period of:
    • If the worker is less than 21 years of age on the date of the birth or on the date of the administrative or judicial decision on a fostering arrangement or the judicial decision formalising an adoption, no minimum contribution period is required.
    • If the worker is between 21 and 26 years of age on the date of the birth or on the date of the administrative or judicial decision on the fostering arrangement or the judicial decision formalising the adoption :

      90 days within the 7 years immediately prior to the start of the period of leave or, alternatively  
      180 days of contributions over the course of their working life prior to said date.
    • If the worker is over 26 years of age on the date of the birth or on the date of the administrative or judicial decision on a fostering arrangement or the judicial decision formalising the adoption:

      180 days within the 7 years immediately prior to the start of the period of leave or, alternatively, 360 days of contributions over the course of their working life prior to said date.

    In cases of birth, exclusively applicable to the biological mother.

    The ages indicated in the previous sections should be the age the mother has reached   when the leave period begins, taking as a reference the time of the birth for the purposes of showing they have covered the minimum contribution period which may apply.

    If the worker starts her leave before the birth and, having been awarded the benefit taking as a reference the likely day of the birth, once the birth takes place, she does not provide evidence of having covered the minimum contribution period required, the benefit will be withdrawn and the benefits received up to that date will not be considered undue. In these cases, the mother will be awarded the non-contributory benefit for the corresponding period, counting from the date of the birth.

    Situations of international adoption/fostering requiring prior travel to the country of origin of the adopted child:

    When the adoptive parents take the suspension period provided for in article 48.4 of|ET, the age indicated should be the age they have reached at the start of the leave period, which can be taken up to 4 weeks before the decision formalising the adoption, taking the time the decision is reached as a reference to  verify that they have fulfilled the  minimum contribution period required.

    When the adoptive parents make use of the provisions of article 49. b) of the EBEP, the age will be that reached at the start of the period of leave for adoption or fostering, which can be taken up to four weeks before the decision formalising the adoption or the administrative or judicial decision on the fostering arrangement (where applicable, following the leave of up to 2 months with the right to receive basic pay), taking the date of the administrative or judicial decision as a reference to verify that they have fulfilled the minimum contribution period.

    In the cases referred to above in which the benefit has been awarded at the start of the period of leave, taking into account the 4 weeks prior to the decision in which said leave can begin:

        • If, once the judicial or administrative decision has been reached, the beneficiaries have not provided evidence of having fulfilled the minimum contribution period required, the benefit will be withdrawn and the benefit received up to that date will not be considered undue.
        •  If, following the 4 week period, the corresponding judicial or administrative decision has not been reached, the management entity can suspend the benefit as a precautionary measure until said decision is made.
        • If the international adoption or fostering process is not completed, the interested parties will not be required to pay back the benefits received up to the time the negative decision is reached, or where applicable, up to the moment at which payment of the benefit was suspended, due to the 4 week period having expired, in accordance with the previous paragraph.

    Effective contribution period:

    The period of maternity or paternity leave following the date the employment contract is terminated, or which begins whilst the beneficiary is in receipt of unemployment benefit, will be considered as an effective contribution period for the purpose of the Social Security benefits for retirement, permanent disability, death and survival, maternity and paternity leave.

    In the case of workers with part-time contracts:

    To verify that they have fulfilled the minimum contribution period, from  04-08-2013, the rules established in Royal Decree-law 11/2013, of 2 August will be applied, and the overall partiality coefficient will be calculated taking into account the previous seven years or, where applicable, over the entire working life of the beneficiary.

    In the case of workers included in the Special System for Domestic Employees, from 2012 to 2018, the hours worked under this system will be determined taking into account the contribution bases referred to in temporary provision 16 of the Consolidated Text of the General Social Security Act, divided by the amount set for the minimum hourly basis of the General Regime by the LPGE for each of those years. For these purposes, any periods of

    |TD , risk during pregnancy or natural breastfeeding, maternity or paternity leave, whilst the part time contract is effective, and any periods during which the beneficiary has received unemployment benefits due to the suspension or termination of an employment relationship of this kind, will have the same status as the period preceding the sick leave, the leave, the suspension or the termination of the contract, respectively.

    Any periods which are legally equal to contribution periods that follow periods of part time work will be calculated using the same method as is used in relation to the last period worked.

    When more than one   part time activity is carried out at the same time, the theoretical contribution days for the different activities will be added together, both in cases of Pluri-employment and Pluri-activity to which the reciprocal calculation should be applied.

    Under no circumstances can the number of contribution days calculated be higher than the number that would apply had the worker been providing their services full-time.

    These terms do not apply to workers with full time contracts who, nonetheless, take periods of maternity leave under the part-time hours regime.

  • In cases of Pluri-employment or Pluri-activity:

    The beneficiary may take the maternity leave and benefits for each of their jobs uninterrupted and independently, in accordance with any legislation that applies in each case.

    When, in the case of Pluri-activity, workers show that they are only entitled to the benefit under one of the regimes, they will receive a single benefit calculated by taking into account only the contributions paid into said regime. If they do not meet the requirements under any of the regimes, all the contributions paid in each of the regimes will be added up, provided they do not overlap, and the allowance will be paid based on the regime with the most contribution days. If, even once these days have been added together,  they are still not eligible, they will receive the non-contributory maternity benefit, in the case of birth.

    If they take joint leave, the number of days taken from the two jobs or activities by the beneficiary in a situation of pluri-employment or pluri-activity, must be the same.
  • They must be up to date with the payments for which employees are directly responsible, even if the benefit is awarded, as a result of the reciprocal calculation of contributions, under a regime for workers employed by another person. For these purposes, the invitation to pay mechanism provided for in

    |art.  28.2 of Decree 2530/1970, of 20 August shall apply, whichever Social Security regime the interested party is signed up to at the time they start drawing the benefit or they become eligible for said benefit.

    Situations assimilated to affiliation

    The following are considered to be situations similar to affiliation:

    1. The legal status of total unemployment for which a contributory benefit is received.

    2. The month after the interested party ceases to exercise the public post or ceases to hold the public post of representative or to exercise the provincial, regional or national union duties which gave rise to the forced leave status, or equivalent situation, during which the individual should ask to be reinstated at work.

    3. If the worker is transferred outside the country by the company.

    4. For artists and bullfighting professionals, the days for which contributions are paid in application of the rules regulating their contributions, which will be considered covered days, and who are registered, even if these do not correspond with the service provision days.

    5. The special agreement for members of parliament and senators from the General Courts and members of the European Parliament and the special agreement for the members of Parliaments and Governments of the  Autonomous Regions.

    6. The period considered to be the effective contribution period of workers employed by another person and self-employed persons who are the   victims of gender-based violence.

    7. The situation of the worker during the period of paid annual leave which has not been taken by said worker prior to the end of the contract.

    8. The periods between seasons of permanent seasonal workers who do not receive contributory unemployment benefits, notwithstanding the benefits accrued when their activity resumes.

    9. Maternity preceded by temporary disability (TD). When between the end of the TD  due to medical discharge and the start of the maternity situation there is no solution for continuity, either because the medical discharge and the start of the maternity leave occur on the same day or because one ends and the other begins on consecutive days.

    10. Maternity resulting in extended effects of TD.
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