Birth and child care
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. 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 workers.
As of 01/04/2019, maternity and paternity benefits have 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.
The financial benefit for the birth and care of a child shall consist of an allowance equal to 100 per cent of the base rate, which shall be the contribution basis for common contingencies for the month immediately preceding the month prior to the month in which the causal event occurred, divided by the number of days to which said contribution refers.
If the worker receives a monthly remuneration and has been registered with the company for the entire calendar month, the corresponding contribution basis shall be divided by thirty.
When the worker joined the company in the month prior to the month in which the causal event occurred, to calculate the base rate the contribution basis for common contingencies corresponding to the month immediately prior to the month in which the break or leave for childbirth and childcare begins shall be used.
If the worker joined the company in the same month as the causal event, the contribution basis for common contingencies for that month will be used to calculate the base rate.
For workers in the Special Scheme for Self-Employed Workers, the financial benefit for the birth and care of a child shall consist of an allowance equivalent to 100 percent of a base rate, the daily amount of which shall be the result of dividing by one hundred and eighty the sum of the contribution bases credited to this special scheme during the six months immediately prior to the month before the month in which the qualifying event occurred.
Specific provisions are also included for the base rate for part-time workers, permanent seasonal workers and self-employed workers in the second and third groups of the Special Scheme for Sea Workers.
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.
For the voluntary return to work of the beneficiary of the benefit prior to the completion of the period requested. Voluntary and premature return to work entails the termination of the right to the benefit, not only of the benefit being received at that moment, but also of the benefit that remains (or has yet to be received).
Due to death of the beneficiary.
When the beneficiary acquires the status of pensioner due to retirement or permanent disability.
- The National Social Security Institute (INSS) in general.
- The Social Marine Institute (ISM), for workers included under the Special Scheme for Sea Workers
Notification of the decision:
Notifications and communications addressed to applicants or recipients of birth and care of a minor benefit, including benefit decisions, are not sent on paper but exclusively by electronic means.
These can be accessed at the e-office service Online notifications. This video provides information on how this service works: https://youtu.be/KCuTpYlv0yE