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Spain - Maternity protection - 2011


LAST UPDATE

15 February 2011
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SOURCES


Name of Act

Royal Decree No. 783/2001 to issue regulations on protection against ionising radiations (Real Decreto No. 783/2001, de 6 de julio, por el que se aprueba el Reglamento sobre Protección Sanitaria contra Radiaciones Ionizantes, Boletín Oficial del Estado No. 178/2001, 26 julio 2001).

Name of Act

Royal Decree No. 295/2009 on Cash benefits of the Social Security System concerning Maternity, Paternity, Risk during Pregnancy and Risk during Brestfeeding, (Real Decreto núm. 295/2009 por el que se regulan las prestaciones económicas del sistema de la Seguridad Social por maternidad, paternidad, riesgo durante el embarazo y riesgo durante la lactancia natural)

Name of Act

Royal Decree No. 1 on Social Security General Act, dated 20 June 1994 (Real Decreto Legislativo 1/94 de 20 de junio 1994, Boletín oficial del Estado No. 154/1994, 29 junio 1994, Texto refundido de la Ley General de la Seguridad Social), as amended up to Constitutional Act 3/2007 for effective equality between women and men.

Name of Act

Act No. 31 on the Prevention of Risks at Work, of 8 November 1995 (Ley 31/1995 de 8 de noviembre 1995 de Prevención de Riesgos Laborales, Boletín Oficial del Estado No. 269/1995, 10 noviembre 1995), as amended by Act No. 39 concerning the conciliation of work-family life of workers, dated 5 November 1999

Name of Act

Royal Decree No. 1/1995 enacting the Worker´s Charter, of 24 March 1995 as amended up to Act 9/2009 for extending the duration of paternity leave in cases of birth, adoption or fostering, and amended up to Law 35/2010 of 17 September of urgent measures to reform the labour market (Real Decreto Legislativo 1/95 de 24 de marzo 1995, Boletín Oficial del Estado No. 75/1995, 29 marzo 1995, Texto refundido de la Ley del Estatuto de los Trabajadores con las normas modificadoras de la Ley 9/2009, de 6 de octubre, de ampliación de la duración del permiso de paternidad en los casos de nacimiento, adopción o acogida y de la Ley 35/2010, de 17 de septiembre, de medidas urgentes para la reforma del mercado de trabajo).
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Name of Act

Decree 2766/1967 of 16 November, to issue regulations on health protection benefits and management of medical services in the General Social Security, drafting as Decree 3091/1972 of 2 November (Decreto 2766/1967de 16 de noviembre, por el que se dictan normas sobre prestaciones de asistencia sanitaria y ordenación de los servicios médicos en el Régimen General de la Seguridad Social, redacción según Decreto 3091/1972, de 2 de noviembre).

Name of Act

Royal Decree 63/1995 of 20 January, to issue regulations on health benefits in the National Health System (Real Decreto 36/1995 de 20 de enero, sobre ordenación de prestaciones sanitarias del Sistema Nacional de Salud)

Name of Act

Royal Decree 39/1997 to issue regulations on Prevention Services (Real Decreto 39/1997, de 17 de enero, por el que se aprueba el Reglamento de los Servicios de Prevención), as amended up to R.D. 298/2009 of 6 March.

MATERNITY LEAVE


Scope

All women workers voluntarily performing services in return of remuneration from another person (employer), who organises and directs the work.

This Decree applies to all categories of workers in the private sector.
Royal Decree No. 1/1995 enacting the Worker’s Charter Art.1(1)

Duration


Compulsory leave

6 weeks after birth.
Royal Decree No. 1/1995 enacting the Worker’s Charter Art.48(4)

General total duration

The general total duration of maternity leave is 16 consecutive weeks.
Royal Decree No. 1/1995 enacting the Worker’s Charter Art.48(4)
Historical data (year indicates year of data collection)
  • 2009: The general total duration of maternity leave is 16 consecutive weeks.
  • 2004: Sixteen weeks
  • 1998: Sixteen weeks
  • 1994: Sixteen weeks

Extension

In case of multiple birth, 2 weeks for each child after the second child. Except for the 6 weeks of compulsory leave, if the child is premature or has to be hospitalised after birth, leave can be taken after the end of hospitalisation.
Royal Decree No. 1/1995 enacting the Worker’s Charter Art.48(4)

Leave in case of illness or complications

If after maternity leave the mother still needs medical care as a result of the birth of her child and she is unable to work, she will be in situation of temporary incapacity and entitled to sickness benefits from the health insurance scheme. If the child is premature or has to be hospitalised after birth, the mother or the father are entitled to be absent from work for one hour. They also have the right to reduce their working hours up to two hours a day with the proportional reduction of their remuneration.
Royal Decree No. 1/1995 enacting the Worker’s Charter Art.37(4bis)

RELATED TYPES OF LEAVE


Parental leave


Scope

Workers are entitled to parental leave of no more than 3 years to take care of their biological or adoptive child, counted from the date of the child’s birth or the date of adoption. Each successive child entitles the worker to a new period of leave which marks the end of the current period of leave. When both parents work for the same company, the employer may prevent the concurrent exercise of their parental leave on the grounds of business risks.
Royal Decree No. 1/1995 enacting the Worker’s Charter Art.46(3)

Length

Up to 3 years (unpaid).
Royal Decree No. 1/1995 enacting the Worker’s Charter Art.46(3)

Paternity leave


Scope

In cases of child birth, adoption or foster care, the worker is entitled to suspend his contract for four consecutive weeks, that can be extended in the event of multiple childbirth, adoption or fostering in two days for each child after the second.
Royal Decree No. 1/1995 enacting the Worker’s Charter Art.48 bis (Amended by the Act 9/2009)

Qualifying conditions

The worker shall give advance notice to the employer, in good time, of the exercise of this right in the terms stablished, if any, in collective agreements.
Royal Decree No. 1/1995 enacting the Worker’s Charter Art.48 bis (Amended by the Act 9/2009)

Length

Four weeks
Royal Decree No. 1/1995 enacting the Worker’s Charter Art.48 bis (Amended by the Act 9/2009)

RIGHT TO PART-TIME WORK


General provisions

By agreement between employers and female workers, the suspension of the contract can be enjoyed in full-time or part time.
By agreement between employers and male workers, the suspension of the contract can be enjoyed by workers in full-time or part time with a minimum of 50 per cent of daily work performed.

Royal Decree No. 1/1995 enacting the Worker’s Charter Art.48.4
Royal Decree No. 1/1995 enacting the Worker’s Charter Art. 48 bis(amended by the Act. 9/2009)

CASH BENEFITS


Maternity leave benefits


Scope

The social security system (including maternity benefits) covers all the Spanish citizens normally exercising an activity in Spain, such as employees, including casual, seasonal and permanent workers, self-employed persons, students and civil servants. Spain-American, Portuguese, Brazilian, Andorran and Philippine are considered as Spanish citizens for the purposes of this law. International treaties, agreements or instruments ratified, subscribed or approved to the effect are applicable with respect to nationals from other countries.

All workers are entitled to maternity leave cash benefits, whether employees or self-employees, whatever their sex, if affiliated in any social security scheme and have made the contributions required.
Royal Decree No. 1 on Social Security General Act Art.7(1.a,b,c,d 2.3.4.5)
Royal Decree No. 295/2009 on Cash benefits of the Social Security System concerning Maternity, Paternity, Risk during Pregnancy and Risk during Brestfeeding. Art.3(1)

Qualifying conditions

The qualification conditions to be entitled to cash maternity benefits are determined both by the age of the worker and the length of its contribution to the general social security scheme. a) if the worker is under 21 years old on the date of the birth/adoption/foster care: no minimum contribution period is required. b) if the worker is between 21 and 26 years old: minimum contribution period of 90 days in the 7 years immediatly prior to the time when the leave start or, alternatively, 180 days of contributions in all the worker’s working life prior to the date. c) if the worker is over 26 years old: minimum contribution period of 180 days in the 7 years immediatly prior to the moment when the leave starts or alternatively, 360 days in all the worker’s working life prior to the date. In the case of part-time workers, contibutions will be calculated according to the number of hours worked and by calculating their equivalence in theoritical contribution days.

To be entitled to cash maternity benefits, employees should be affiliated to the general social security scheme and have made contributions for 180 days in the 5 years preceding the date of birth, adoption or foster care.
Royal Decree No. 1 on Social Security General Act Art.133 ter
Royal Decree No. 295/2009 on Cash benefits of the Social Security System concerning Maternity, Paternity, Risk during Pregnancy and Risk during Brestfeeding. Art.4

Duration

All workers are entitled to maternity benefits from the first day of initiation of maternity leave, and its duration will correspond to the duration of the enjoyed rest period. In general, 16 consecutive weeks, that will be extended in 2 weeks for each child after the second child, in cases of multiple birth, adoption or fostering.
Royal Decree No. 295/2009 on Cash benefits of the Social Security System concerning Maternity, Paternity, Risk during Pregnancy and Risk during Brestfeeding. Art. 8

Amount

100 per cent of the contribution basis for the whole duration of maternity leave.
Royal Decree No. 295/2009 on Cash benefits of the Social Security System concerning Maternity, Paternity, Risk during Pregnancy and Risk during Brestfeeding. Art.3(1)
Royal Decree No. 1 on Social Security General Act Art.133(quarter)
Historical data (year indicates year of data collection)
  • 2009: 100 per cent of the contribution basis for the whole duration of maternity leave.
  • 2004: One hundred percent
  • 1998: One hundred percent
  • 1994: Seventy-five percent

Financing of benefits

Social Security System, which is financed by different sources: contributions from the State, the insured, the employers, interests, fines and other income.
Royal Decree No. 1 on Social Security General Act Art.86(1.a,b,c,d,e)
Historical data (year indicates year of data collection)
  • 2009: Social Security System, which is financed by different sources: contributions from the State, the insured, the employers, interests, fines and other income.
  • 2004: Social security
  • 1998: Social security
  • 1994: Social security

Paternity leave benefits


Scope

The social security system (including paternity benefits) covers all the Spanish citizens normally exercising an activity in Spain, such as employees, including casual, seasonal and permanent workers, self-employed persons, students and civil servants. Spain-American, Portuguese, Brazilian, Andorran and Philippine are considered as Spanish citizens for the purposes of this law. International treaties, agreements or instruments ratified, subscribed or approved to the effect are applicable with respect to nationals from other countries.

All workers are entitled to paternity leave cash benefits, whether employees or self-employees, whatever their sex, if affiliated in any social security scheme and have made the contributions required.
Royal Decree No. 1 on Social Security General Act Art.7(1.a,b,c,d 2.3.4.5)
Royal Decree No. 295/2009 on Cash benefits of the Social Security System concerning Maternity, Paternity, Risk during Pregnancy and Risk during Brestfeeding. Art.23(1)

Qualifying conditions

All workers are entitled to paternity leave cash benefits, whether employees or self-employees, whatever their sex, if affiliated in any social security scheme and have made a minimum contribution period of 180 days in 7 years immediatly prior to the moment when the leave or the suspension of the contract starts or alternatively, 360 days in all the worker’ s working life prior to the date.

The paternity benefits are incompatible with other sources of benefits for the same period as a result of the paternity leave for the birth, adoption or fostering of one child.
Royal Decree No. 295/2009 on Cash benefits of the Social Security System concerning Maternity, Paternity, Risk during Pregnancy and Risk during Brestfeeding. Art.23(1), art.23(9)

Duration

All workers are entitled to paternity benefits from the first day of the initiation of the suspension of the contract, and its duration will correspond to the duration of the enjoyed rest period. a) in general, 13 consecutive calendar days that can be extended in 2 weeks for each child after the second child, in case of multiple birth, adoption or fostering. b) for those who are covered by the Basic Statute of Public Officer, 15 consecutive calendar days during the paternity leave in case of birth, adoption or fostering of one or more child. c) 20 consecutive calendar days, when birth, adoption or fostering occurs in a large family, when the family acquire this status with the birth, adoption or fostering or when previously existed in the family a member with a disability in a scale equal to or higher than 33%. This period will be extended in two days for each child after the second child, in case of multiple birth, adoption or fostering d) 20 consecutive calendar days, when the child birth, adopted or fostered has a disability in a scale equal to or higher than 33%.
Royal Decree No. 295/2009 on Cash benefits of the Social Security System concerning Maternity, Paternity, Risk during Pregnancy and Risk during Brestfeeding. Art.26

Amount

100 percent of the contribution basis established for temporary incapacity benefits, taking as a reference the date of initiation of the rest period.
Royal Decree No. 295/2009 on Cash benefits of the Social Security System concerning Maternity, Paternity, Risk during Pregnancy and Risk during Brestfeeding. Art.25

Financing of benefits

Paternity leave benefits are provided in one payment by the Social Security System, without any possibility of co-financing or co-managing arrangement with private entities.

Social Security System is financed by different sources: contributions from the State, the insured, the employers, interests, fines and other income.
Royal Decree No. 295/2009 on Cash benefits of the Social Security System concerning Maternity, Paternity, Risk during Pregnancy and Risk during Brestfeeding. Art.29(1)(2)(3)
Royal Decree No. 1 on Social Security General Act Art.86(1.a,b,c,d,e)

MEDICAL BENEFITS


Pre-natal, childbirth and post-natal care

The right to maternity health care is recognized and shall enjoy the same rules that regulate health care.

The National Health System will provide care and health care to all people, financed by the Social Security, including among others, the services of women care: a) early care and health monitoring of pregnancy. b) preparation for childbirth, c) visit to the doctor during the first month postpartum, d) the detection of risk groups and early detection of gynecological cancer and breast cancer, according to the programs established by the health services, e) treatment of the pathological complications of menopause, according to programs of health services.
Royal Decree 2766/1967 of 16 November, to issue regulations on health protection benefits and management of medical services in the General Social Security. Art. 14(2)
Royal Decree 63/1995 of 20 January, to issue regulations of health benefits in the National Health System Art. 1,2(1), Annex 1 (2.1)

Financing of benefits

Social Security System, which is financed by different sources: contributions from the State, the insured, the employers, interests, fines and other income.
Royal Decree No. 1 on Social Security General Act Art.86(1.a,b,c,d,e)
Royal Decree 63/1995 of 20 January, to issue regulations of health benefits in the National Health System Art.5

BREASTFEEDING


Right to nursing breaks or daily reduction of hours of work

Women workers are entitled to a break of one hour, which may be divided into two breaks to nurse their child until 9 months of age. The duration of the break will be increased proportionally in the event of multiple births. They may reduce their normal working hours by 30 minutes instead of taking the breaks. The worker may as well take the accumulated time reduction entitlement as full working days in accordance with the terms laid down in a collective agreement or in an individual agreement based on the former. The father is also entitled to these breaks or to reduce his working hours by 30 minutes.
Royal Decree No. 1/1995 enacting the Worker’s Charter Art.37(4)

Remuneration of nursing breaks

Nursing breaks are paid.
Royal Decree No. 1/1995 enacting the Worker’s Charter Art.37(4)

HEALTH PROTECTION


Arrangement of working time


Night work

If the results of an assessment of the workplace reveals a possible risk for pregnancy or breastfeeding, the employer shall take the necessary measures to prevent the exposure to this risk, by adapting the conditions of work. Not to perform night work may be considered as one of these measures.
Act No. 31 on the Prevention of Risks at Work Art.26(1)

Overtime

If the results of an assessment of the workplace reveals a possible risk for pregnancy or breastfeeding, the employer shall take the necessary measures to prevent the exposure to this risk, by adapting the conditions of work. Not to perform overtime or the reduction of daily work may be considered as one of these measures.
Act No. 31 on the Prevention of Risks at Work Art.26(1)

Time off for medical examinations

Pregnant workers are entitled to remunerated time off for prenatal medical visits and for sessions on preparatory techniques for the birth, on condition that they justify the need to time off during working hours.
Act No. 31 on the Prevention of Risks at Work Art.26(5)

Dangerous or unhealthy work


Risk assessment


» Assessment of workplace risks

For all activities liable to involve a specific risk of exposure to agents, processes or working conditions, the employer shall determine the nature, degree and duration of exposure in order to assess any risk to the health of pregnant women, women who have recently given birth, as well as of the foetus.
Act No. 31 on the Prevention of Risks at Work Art.26(1)

» Adaptation of conditions of work

If the results of the assessment of workplaces reveal a risk to the safety or health or an effect on pregnancy or breastfeeding of a worker, the employer shall take the necessary measures to ensure that, by temporarily adjusting the working conditions and/or the working hours of the worked concerned, the exposure of that worker to such risk is avoided.
Act No. 31 on the Prevention of Risks at Work Art.26

» Transfer to another post

In case the adaptation of the conditions of work or working time would not be possible or is not enough to prevent the risks that may negatively affect the health of the pregnant woman or the fetus, she should be transferred to another job compatible with her state, provided that those circumstances are certified by the doctor in the applicable social security scheme assigned to the worker. The employer shall determine the posts that present no risk to that effect. The worker shall be reinstalled in her job as soon as her condition allows it. She can be transferred to a post which does not correspond to her group or category, although she would keep the remuneration of her previous post. These provisions apply also after confinement, in situations where there is a risk for the mother and the newborn child.
Act No. 31 on the Prevention of Risks at Work Art.26(2)

» Paid/unpaid leave

If transferring the worker to another post is not technically or objectively feasible, or cannot reasonably be required on duly justified grounds, the law provides for the suspension of the employment contract. During the suspension of the contract of employment, women are entitled to cash benefits from the social security system until the child reaches nine months maximum.
Act No. 31 on the Prevention of Risks at Work Art.26(4)
Royal Decree No. 1 on Social Security General Act Art.135bis, art.135ter

» Right to return

The suspension of the contract of employment due to the impossibility of transfer to another post of the pregnant women shall end: a) with the beginning of maternity leave b) when the breastfed baby reaches the age of nine months or c) when the impossibility to exercise her job or a job compatible with her state disappears.
Royal Decree No. 1/1995 enacting the Worker’s Charter Art.48(5)

Particular risks


» Arduous work (manual lifting, carrying, pushing or pulling of loads)

In any case, pregnant workers and nursing mothers cannot perform activities involving risk of exposure to agents or conditions which may jeopardize its health or safety, or the fetus or the child. Not to perform activities like mining work are included in the non-exhaustive list of prohibitions.
Royal Decree 39/1997 to issue regulations on Prevention Services Art.4(1)

» Work involving exposure to biological, chemical or physical agents

Nursing mothers may not be employed on work which involves a significant risk of contamination. Special doses for exposure to radiation are set for women on reproductive age and during pregnancy.

In any case, pregnant workers and nursing mothers cannot perform activities involving risk of exposure to agents or conditions which may jeopardize its health or safety, or the fetus or the child. Not to perform activities like the exposing to physical agents, such as ionising radiations or work in hyperbaric atmosphere, the exposing to biological agents such as toxoplasmatics, rubella virus, or chemicals agents such as carcinogenic and mutagenic substances, are included in the non-exhaustive list of prohibitions.
Royal Decree No. 783 to issue regulations on protection against ionising radiations Art.7
Royal Decree 39/1997 to issue regulations on Prevention Services Art.4(1)

» Work involving physical strain (prolonged periods of sitting, standing, exposure to extreme temperatures, vibration)

In any case, pregnant workers and nursing mothers cannot perform activities involving risk of exposure to agents or conditions which may jeopardize its health or safety, or the fetus or the child. Not to perform activities like mining work are included in the non-exhaustive list of prohibitions.
Royal Decree 39/1997 to issue regulations on Prevention Services Art.4(1)

NON-DISCRIMINATION AND EMPLOYMENT SECURITY


Anti-discrimination measures

Not to be discriminated on grounds of sex or marital status when seeking employment or after having been employed is one of the basic rights of workers in Spain. Any regulations, stipulations of collective agreements, individual contracts by an employer discriminating against a worker by reason of age or discriminating either in his or her favour or against him or her in matters of employment, remuneration, hours of work or other conditions of employment by reason of sex or marital status are null and void within the Spanish State.
Royal Decree No. 1/1995 enacting the Worker’s Charter Art.4(2,c), art.17

Protection from discriminatory dismissal

A contract of employment is suspended in the case of maternity and adoption. After the legal grounds of suspension have ceased to exist, the worker is entitled to his or her reinstatement in the job. Dismissal is null and void if it is based on any of the grounds of discrimination prohibited by the Constitution or the law and which violate fundamental rights and freedoms of the worker. The same apply when dismissal occurs during maternity leave, risk during pregnancy, adoption or foster care, or during pregnancy, breastfeeding or parental leave. Dismissal is allowed if there is an evidence that it is not based on grounds related to pregnancy or maternity/paternity.
Royal Decree No. 1/1995 enacting the Worker’s Charter Art.45(1.d), art.48(4), art. 53(4a.b.c.), art.55(5a.b)

Guaranteed right to return to work

A contract of employment is suspended in the case of maternity and adoption. After the legal grounds of suspension have ceased to exist, the worker is entitled to his or her reinstatement in the job. During parental leave, the employee preserves all his/her seniority rights. The post the worker occupied has to be kept open for one year from the date that parental leave commences. After one year, a post of the same professional group or category shall be reserved for the employee on parental leave.
Royal Decree No. 1/1995 enacting the Worker’s Charter Art.45(1.d), art. 48(4)

Results generated on: 19th April 2014 at 11:28:58.
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