General Scheme

Protected situation

  • If a pregnant female employee, 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 26.4 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 is 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 breastfeeding 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 female worker or her child are unrelated to agents, procedures or conditions of the job position or activity being carried out, they are not considered to be protected situations.

Beneficiaries / Requirement

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

    • 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 breastfeeding.
  • No minimum contribution period is required since it arises from occupational contingencies.

Financial Benefits / Amount

The financial benefit consists of a subsidy equivalent to 100% of the corresponding regulatory base, which will be equivalent to the base established for temporary disability benefit, arising from common contingencies.

Acquisition of a right to benefits and duration

  • Beginning of the right to receive benefits:

The entitlement to the benefit begins on the same day that the employment contract is suspended due to risk during breastfeeding.

The financial benefit for risk during breastfeeding will not be granted until the maternity leave period has expired.

  • Duration:

It is paid during the period required to protect the health of the female worker and/or her child, and the maximum duration is until the child turns 9 months old, unless the beneficiary has returned to her previous job position or started another job that is compatible with her condition prior to this time. 

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

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.

  • Performs any work or activity, either as a salaried worker or self-employed, if these started after the suspension of her work contract due to risk during breastfeeding, if these are incompatible with her condition.

Expiry

The right to a benefit expires due to:

  • The child reaching 9 months of age.
  • Return of the female worker to her previous job position or professional activity or starting another job that is compatible with her condition.
  • Termination of the employment contract by virtue of the causes established by law or ending the professional activity.
  • Stopping breastfeeding.
  • Death of the beneficiary or the breastfeeding child. 
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.

Recognition of the right to benefits

The Managing Body or Mutual Society Partnering with  Social Security covering the company for professional contingencies is responsible for granting entitlement to 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 breastfeeding situation 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 breastfeeding at the relevant managing Body or collaborating body.

If the managing Body or collaborating body considers that the situation of risk during breastfeeding 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 breastfeeding.
Benefit application:
  • To be entitled to the benefit, the worker must submit the application to the relevant provincial Directorate of the managing Body in the province in which they reside or to the appropriate Mutual Society Partnering with Social Security.
  • 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, on the Legal Framework for Public Administrations and Common Administrative Procedure, accompanied by the required documents.
Resolution and notification:
  • The provincial Director of the managing Body in the province where the interested party resides 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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