The purpose of this report is to briefly detail the rights of being under maternity or paternity leave in Spain as well as the possible actions that employees may request in the exercise of their rights after the return to work and even until the child reaches 12 years of age.
I) Applicable regulations
- Royal Legislative Decree 2/2015, of October 23, 2015, approving the revised text of the Workers' Statute Law
- Royal Legislative Decree 8/2015 of October 30, 2015, approving the revised text of the General Social Security Law
II) The concept of maternity and paternity and its legal effects
Maternity and paternity are understood in a broad sense that includes adoption, guardianship, and foster care, produces in the scope of the employment relationship the following effects:
- The employer has, in the situation of pregnancy or recent childbirth, the obligation to adopt specific measures for the prevention of occupational hazards, as well as, where appropriate, to proceed to the transfer of the woman's job or the suspension of the contract if there is risk to the mother, the fetus or the child.
- Workers are protected against discriminatory business decisions, understood as those affecting working conditions or the life of the contract itself, based on pregnancy, birth or care of minors. The protection is such that the termination of the contract or the dismissal produced on the exercise of the rights related to maternity and conciliation is considered null and void, unless it is justified.
- Employees are entitled to a period of leave for childbirth and childcare that determines the suspension of the employment contract, with the right to receive a social security benefit. During the suspension, the following consequences apply:
- Exemption from the reciprocal obligations to work and pay for work;
- Maintenance of the obligation to pay contributions, with the right to bonuses in certain circumstances (an interim contract may be entered into to replace the worker during the suspension of the contract, because of maternity or paternity leave or risk during pregnancy risk) with the right to a Social Security bonus.
- Reservation of the job, computation of the period of suspension of the contract for seniority purposes and vacations and the right to be called to training courses organized by the company.
- Interruption of the computation of the trial period if so agreed.
- Both maternity and paternity leave will be enjoyed during a period of 16 weeks from the birth of the child. It should be noted that both paternity and maternity leave can be taken within 12 months after the birth of the child, but the first 6 weeks must be taken immediately after the birth of the child.
- Both parents have the right to take a leave of absence for childcare with job reservation
- Both parents have the right to request the adaptation of the working day to make effective the right to conciliation and care for their child (Information extended in point 4 of this report).
- Workers have the right to paid leave, as well as to reduced working hours.
- It is common for workers to enjoy immediately after their maternity leave, the accumulated breastfeeding, and right after, the vacations they could not enjoy during the maternity or pregnancy risk period.
III) Breastfeeding leave
Breastfeeding leave consists of the possibility for the mother or father to be absent from work for one hour to breastfeed (for both natural and artificial breastfeeding). The keys to this right are as follows:
- It has a duration of one hour for each day (which can be divided into two periods of half an hour), during the first nine months of the baby's life.
- In cases of multiple births, the employee is entitled to one hour of breastfeeding for each child.
- Breastfeeding leave can be accumulated with maternity leave (calculating one hour for each day from the day you return to work until the child reaches the age of 9 months).
IV) Conciliation of work and family life
The worker may need time to conciliate personal, family and work life, requiring either (1) a reduction of the working day to solve various situations of need; (2) an adaptation of the length and distribution of the working day; or a (3) leave of absence.
It is important to emphasize the fact that the dismissal of workers while enjoying these reconciliation rights is declared null and void if it is not justified. The refusal or limitation by the company to the enjoyment of the right to conciliation of work and family life, when there are justified reasons for its exercise, clearly affects the right to non-discrimination, for which a compensation for moral damages can be claimed.
1. Reduction of working hours because of legal guardianship
Those who, for reasons of legal guardianship, have direct care of a minor under 12 years of age or a disabled person, who does not perform a paid activity, are entitled to a reduction of the daily working hours, with a proportional reduction of the salary between at least one eighth and a maximum of one half of its duration.
This reduction of working hours constitutes an individual right of the workers, men or women. However, if two or more employees of the same company generate this right by the same person, the employer may limit its simultaneous exercise for justified operational reasons of the company.
During the period of reduced working hours, the employee is entitled to:
- Enjoy the same number of vacations, in case of reduction of working hours in a daily basis. However, the reduction of working hours that involves an accumulation of working days, implies the reduction of vacation days in the same proportion.
- To all the remuneration inherent to his full-time job, reduced in the same proportion as the working day, for example, the seniority allowance; without being deprived of any of the corresponding remuneration items, such as, for example, the supplement for a split working day; however, the punctuality bonus must be received in full; as well as the food allowance.
- To the extraordinary payments calculated taking into account the salary that corresponds to the reduced working hours;
- To summer working hours, for example, by reducing the time off work by one hour, in order to complete the hours in annual computation that the reduced working day entails.
2. Adaptation of the length and distribution of the working day
The employee has the right to request adaptations in the length and distribution of the working day, in the organization of working time and in the form of provision, including the provision of his or her work remotely, in order to make effective his or her right to the reconciliation of family and working life. Such adaptations must be reasonable and proportionate in relation to the needs of the worker and the organizational or productive needs of the company. In the case of having children, employees are entitled to make such a request until their children reach the age of 12. In this case, in addition, the adaptation of the working day requires the accreditation of reasonableness and necessity and cannot be understood as an unconditional right and in absolute terms. Therefore, there is a generic right of all workers to request the right to reconciliation of work and family life, and a specific right for those who have children under 12 years of age and who justify the reconciliation on that basis, which does not prevent the right from being exercised for family needs other than the care of children under 12 years of age.
Collective bargaining must regulate the terms of the exercise of this right (with non-discriminatory criteria). In the absence of an agreement, the company must negotiate with the worker for a maximum period of 30 days. At the end of the negotiation, it is up to the company to take a decision and such decision must be formalized in writing and communicated to the interested party and must be argued and reasoned, unless the request of the interested party is accepted. The company may accept the interested party's request; deny it or make an alternative proposal.
3. Leave of absence
There is the possibility of requesting leave of absence to care for a family member, as well as to care for a child, whether by nature or adoption, or in cases of foster care for the purpose of adoption or permanent foster care. This leave of absence is an individual right of men and women. However, if two or more employees of the same company generate this right by the same causal subject, the employer may limit its simultaneous exercise for justified reasons of operation of the company.
Its maximum duration is 3 years, counting from the date of birth of the child or, as the case may be, of the judicial or administrative decision, and it can be taken in installments. The need to take care of a new child entitles the employee to a new period of leave, and the beginning of this period of leave terminates the period of leave already taken.
Employers may substitute, by means of interim contracts, workers on leave of absence, establishing bonuses in the employer's social security contributions. In the event of termination of the contract, the period of leave of absence for this reason is computed for compensation purposes. Additionally, collective agreements may establish formalities and deadlines for requesting leave of absence or reinstatement.
It is also important to take into consideration that during the first year of leave, the employee is entitled to the reservation of his or her job. The collective agreement may extend the reservation of the employee's job for the entire period of the leave of absence, and it can be extended for 15 or 18 months in case of large family. However, and generally, after the first year, of leave of absence the employee is entitled to the reservation of a job in the same professional group or equivalent category, but not necessarily to the exact same position.
Unless better criterion founded in law, in Barcelona on January 25, 2022.
ESCURA
