Birth and child care
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On 07/03/2019, Royal Decree-Law 6/2019, of 1 March, on urgent measures to guarantee equal treatment and opportunities between women and men in employment and occupation, was published. Its entry into force, for benefits for birth and childcare, as well as permits for birth, adoption and parents other than the biological mother, is 1 April 2019 (causative events since 01/04/2019). This Royal Decree-Law includes amendments to the Workers’ Statute (ET) and the Basic Statute of Public Employees (EBEP), as well as to the General Law of Social Security, for equal rights for workerswhich affect current maternity and paternity benefits.
As of 01/04/2019, maternity and paternity benefits have therefore been unified into a single benefit known as BIRTH AND CHILD CARE
This benefit is included in the protective action of all schemes of the System.
Protected situations during periods of leave taken for said situations are as follows:
- Birth of a child.
- Adoption, guardianship for the purpose of adoption and foster care provided that, in the latter case, their duration is not less than one year, and it involves:
- Children under 6 years of age.
- In accordance with the Basic Statute of Public Employees (EBEP), the cases of adoption, guardianship for purposes of adoption or fostering, both temporary and permanent, will be those established in the Civil Code or in the civil laws of the autonomous communities that regulate them, and the temporary foster care must have a duration of no less than one year.
- Beneficiaries will be employees or self-employed persons, regardless of their sex, provided that they are registered or assimilated to registration, enjoy rest periods/permits for birth and childcare and provide proof of the minimum contribution periods required in each case.
- However, employed or self-employed women who, in the event of childbirth, meet all the eligibility criteria for childbirth and childcare benefits, except for the minimum contribution period, will also be eligible for the childbirth allowance.
- Affiliated or affiliated and on active, or assimilated contributor status.
- Be covered for a minimum period of contribution according to age:
If the employee or self-employed person is under 21 years of age on the date of the birth or the date of the administrative or legal decision granting foster care or the legal decision for adoption:
- No minimum contribution period is required.
If the employee or self-employed person is 21 years of age or over and less than 26 years of age on the date of the birth or the date of the administrative or legal decision granting foster care or the legal ruling granting adoption:
- 90 days in the 7 years immediately prior to the moment when the leave starts or, alternatively,
- 180 days of contributions in all the employee’s or self-employed person’s working life prior to that date.
If the employee or self-employed person is 26 years of age or over on the date of the birth or the date of the administrative or legal decision granting foster care or the legal decision for adoption:
- 180 days in the 7 years immediately prior to the moment when the leave starts or, alternatively,
- 360 days of contributions in all the employee’s or self-employed person’s working life prior to that date.
- To be up-to-date with payments for which employees or self-employed persons are directly liable, even though the benefit is awarded due to the reciprocal sum of contributions in a salaried employee system.
To this end, the payment request mechanism provided for in |Art. 28.2 of Decree 2530/1970, of 20 August, will be applied irrespective of the Social Security scheme that the interested party was a part of when accessing the benefit or in which the interested party has gained entitlement.
The duration of the allowance shall be equivalent to that of the rest periods or leave taken, in accordance with the provisions of Art. 48.4, 5 and 6 of the Workers' Statute (ET) and Art. 49 a) and b) and c) of the Basic Statute of Public Employees (EBEP).
In the event of childbirth
There will be a right to the subsidy as from the same day when the corresponding leave period starts:
- From the delivery date or from the date on which the leave began, if prior.
- Biological mothers can start maternity leave up to 4 weeks prior to their due date. This date will be detailed in the Public Health Service maternity report. This decision is taken by the mother
If the biological mother is unfit for work, maternity leave and the corresponding maternity grant will be given from the date of the birth.
In the event of adoption, guardianship for adoption or foster care
- From either the date of the judicial decision constituting the adoption, or from the administrative decision of guardianship for the purpose of adoption or fostering.
- In cases of international adoption, when it is necessary for the parents to go to the country of origin of the adopted child, the benefits may begin up to 4 weeks prior to the court ruling granting adoption.
Childbirth and childcare benefits will consist of a subsidy equivalent to 100% of a regulatory base that is equivalent to temporary incapacity, derived from common contingencies.
Denial annulment and suspension
The right to receive benefits may be denied, cancelled or suspended, if the beneficiary:
- Commits unlawful acts in order to obtain or keep a benefit.
- Works as an employee or self-employed worker during the corresponding periods of leave, unless receiving a benefit under a part-time working day schedule or in the case of multiple employment or multiple activities.
The periods of leave during which the benefit is received will be those that spent with a part-time working day schedule or while carrying out jobs or activities that do not give rise to the benefit.
In the case of international adoption, when the adoption cannot be considered constituted due to a lack of appropriate documentation, if 4 weeks have elapsed since the start of the period of leave.
- The National Social Security Institute (INSS) or, as the case may be, the Social Marine Institute (ISM).
Due to completion of the maximum duration of the leave periods.
Due to voluntary return to work by the beneficiary of the benefit before completing the maximum time period, when the leave period is taken "exclusively" by one of the parents. In the case of birth, the mother may not return to work during the 6 weeks following the birth, which is a mandatory rest period.
Due to a voluntary return to work by one of the parents, or both, prior to completing the maximum time period, when the leave period is taken "consecutively or simultaneously" by both parents.
- In this case, the time remaining until the maximum period is completed will increase the duration of the benefit to which the other parent is entitled, without prejudice to the provisions set forth in the event of death of the children or foster children and the requirement that the mother, in the event of birth, chooses the option in favour of the other parent when starting the period of maternity leave.
- If the beneficiary dies, unless the surviving parent can continue to take the remaining leave, in accordance with the established legal or regulatory conditions.
- The beneficiary acquires the status of pensioner due to retirement or permanent disability, without prejudice to taking the period of leave remaining for the other parent.
- The National Social Security Institute (INSS) in general.
- The Social Marine Institute (ISM), for workers included under the Special Scheme for Sea Workers