General Scheme

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Languages available: Castellano

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Protected Situations

Situations deemed to be protected situations during periods of leave taken for said situations are as follows:

  • The birth of a child.
  • 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 |Autonomous Regions  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 years of age and under 18 years of age  with a disability  or who, due to personal circumstances and experiences, or because they have been brought in from abroad, have particular difficulties integrating into the family and socially, as evidenced by the competent social services. For these purposes, they will be understood to  have some form of  disability when   they are deemed to have   a degree of disability equal to or greater than 33%.

The age of the minor will not be taken into account  in the case of people included in the General Social Security Regime 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.  

Recipients / requirements

Workers employed by another person or who are self employed, including those with trainee contracts and part time workers, whatever their sex, who take periods of leave for the birth or the  adoption or fostering of a child, as indicated in the previous section,   provided they meet the following   requirements:

  • They must be affiliates , affiliated, or similar, to one of the Social Security regimes.
  • They must have paid contributions for a minimum period of:

    • 180 days within the 7 years immediately prior to the start date of the suspension or leave or, alternatively,
    • 360 days over the course of their working life prior to the above mentioned date.

    Consideration as effective contribution period:

    The paternity leave period  following the date the employment contract ends, or which begins during receipt of the unemployment benefit, will be considered as an effective contribution period for the purposes of the corresponding Social Security benefits for retirement, permanent disability, death and survival, maternity and paternity leave.

    In the case of workers with part time contracts:

    To prove the minimum required contribution period has been fulfilled, 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 based on the last seven years or, where applicable, based on the individual's entire working life.

    In the case of workers included in the Special system for domestic employees, from 2012 to 2018, the hours worked within this system will be calculated based on 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 in the LPGE for each one of the financial years.

    For this purpose, the periods of |TD, risk during pregnancy or natural breast feeding, maternity or paternity leave, during which the part time contract remains effective, and the periods during which the individual was in receipt of unemployment benefits due to the suspension or termination of an employment relationship of this type, will have the same status as the period preceding the sick leave, leave, suspension or termination of the contract, respectively.

    The calculation of the periods which are legally considered contribution periods, which follow periods of part time work, will be carried out in exactly the same way 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 up, both in situations of pluri-employment and pluri-activity in which the reciprocal calculation must be applied.

    Under no circumstances can a number of days be calculated which is higher than the number that would have applied had the individual been offering their services full-time.

    These specific circumstances do not apply to workers with full-time contracts who, nonetheless, take maternity leave under the part time regime.

  • 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.
  • In cases of pluri-activity:
    • The interested party will be eligible to receive the benefit under any of the Social Security regimes, if they meet the requirements.
    • If employers can prove they meet the eligibility requirements for the benefit under just one of the regimes, they will receive a single allowance based exclusively on the contributions paid to that 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.
  • In cases of Pluri-employment:

    The worker may be eligible for the allowance in each job if they take the corresponding leave period.

Determination of the beneficiary

  • In the case of multiple births and surrogacy:

    • 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.

Situations assimilated 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 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.

  6. The periods considered as effectively covered by contributions for workers employed by another person or self-employed workers who are the victims of gender-based violence, when, in the event of adoption or fostering, the maternity pay is received by the other parent.

  7. The special agreement with Social Security for representatives and senators of the Parliament and members of the European Parliament and the special agreement for members of the Parliaments and Governments of the Autonomous Regions, regulated in articles 11 and 12 of Order TAS/2865/2003, of 13 October.

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

Financial Benefits / Amount

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

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 will correspond 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 284 of the Consolidated Text 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 284 of the aforementioned Act.

If TD has started before paternity leave:

  • Under the scope of application of the |ET , TD processes shall remain under the same terms until the time of the beginning of the leave. 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 the situation of extension of TD effects provided for in the Consolidated Text 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 base rate will be calculated using the partial working day contribution basis, which is compatible with paternity benefit.
    • For self-employed workers, the regulatory basis 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 article 283 of the Consolidated Text 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:

  • 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 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 and Social Security contributions will be suspended 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.

 

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.

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 .

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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