MATERNITY LEAVE CAN NOW BE DIVIDED INTO WEEKS: HOW IT IS DONE

It is clear that work and family reconciliation remains a pending issue, at least in Spain.

In an attempt to move towards equality between fathers and mothers, the 'Royal Decree-Law 6/2019, of March 1, on urgent measures to guarantee equal treatment and opportunities between women and men in the employment and occupation '. It not only includes the extension of the paternity leave, but also changes in the maternity leave, designed to facilitate work and family reconciliation.

Among them, as established in article 12: possibility of splitting the maternity leave by weeks until the baby is one year old, meeting minimum requirements.

News in work and family conciliation

As we know, mothers who work for others are entitled to a maternity leave of 16 weeks for the birth, adoption or foster care of a child.

In the event that the newborn remains admitted after delivery, the discharge is extended in the days it takes to be discharged, after seven days of admission and with a maximum of 13 additional weeks.

But since April 1 some new features are incorporated:

The two weeks of extension of the benefit paid for the child's disability, multiple birth, adoption or foster care, are reduced to one, for the mother. The other week, it is granted to the father. It is stipulated in the Decree:

"Birth permit for the biological mother: it will last sixteen weeks, of which the six weeks immediately following delivery will be in any case of mandatory and uninterrupted rest. This permit will be extended by two more weeks in the event of disability of the son or daughter and, for each son or daughter from the second in cases of multiple birth, one for each of the parents. "

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The mother can also give her four of her weeks this year, two in 2020 and none in 2021, when paternity and maternity leave is matched. According to the Decree:

"From January 1, 2021, each parent will enjoy the same period of suspension of the employment contract, including six weeks of compulsory leave for each of them, the new regulation provided in Royal Decree-Law 6 being fully applicable / 2019, of March 1 ".

As of April 1, maternity leave can be enjoyed interrupted, when both parents work.

"In the event that both parents work and after the first six weeks of mandatory rest, the period of enjoyment of this permit may be carried out at will of those, in an interrupted manner and exercised from the end of the mandatory rest after delivery until that the son or daughter turns twelve months. In the case of interrupted enjoyment, a notice of at least 15 days will be required for each enjoyment period and will be carried out for full weeks. "

The mother or father who works for someone else can ask your company for a change in the duration and distribution of your day at work until your child turns 12. And the company is now obliged to assess and justify the acceptance or not of the request. According to the Decree:

"Working persons have the right to request adaptations of the duration and distribution of the workday, in the organization of working time and in the form of provision, including the provision of their distance work, to realize their right to the reconciliation of family and work 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. "

Uninterrupted or fractional maternity leave

Until the approval of the new Decree, the mother had to enjoy the 16 weeks of maternity leave at one time. Now, You can split the leave by weeks until the baby reaches twelve months of age.

That at least is what the text of the new legal text says, because the conditions and the way to do it, it seems not very clear yet. Not only is the measure not yet updated on the Social Security website, but also the professionals themselves are not yet clear.

This is explained by Andrés Aranguren Jiménez, a labor lawyer at 2M2 Consulting, after consulting the issue with the National Social Security Institute (INSS). As they have been able to explain, "The mother has to take the six weeks of mandatory rest and, the remaining 10, she can enjoy them as and when she wants, in weekly periods, until the baby reaches 12 months of age."

In addition, you can double the permit to 20 weeks, if you reach an agreement with the company to work part-time.

The decree says:

"This permit may be enjoyed full-time or part-time, when the needs of the service permit, and in the terms determined by regulation."

The labor law expert explains that, as he has been clarified in Social Security, the first period of maternity leave (or the complete leave if he is not going to divide it), is managed by the company for which he works, after communicating the date of childbirth and the beginning and end of rest.

They will be the ones in charge of sending the RECEMA (Referral of maternity and / or paternity certificates) to Social Security, which is the one who pays 100% of the benefit.

This service allows to communicate, through the RED-online System, the company certificates necessary for the recognition of the maternity and / or paternity benefits of the General Regime.

But the lawyer adds that there is still no form for the election of the fractional maternity leave so, in case of choosing this option, the mother will be responsible for requesting an appointment at the INSS (without prior appointment they do not attend) with at least one month in advance (the average waiting time) to personally manage the periods of fractional rest you want to enjoy. Approval is usually immediate.

In addition, according to the lawyer, You must notify the company of the rest period at least 15 days in advance. The company must accept it, except if the father and mother take the same leave days. In that case, you may not authorize it, as it is a conciliation measure.

Usually It is the company that pays the benefit to the worker in a delegated way, because it is the National Institute of Social Security (INSS) who pays it.

But in the case of requesting a fractional permit, Andrés Aranguren believes that it will be the same INSS who pays the benefit to the mother, although in this body they have not been able to clarify this point.

They have also pointed out that This fractional leave does not apply to public officials, as they are governed by another regime.

In the case of a self-employed (self-employed) worker, it will be herself (or her agency) who must appear in the INSS offices to request the enjoyment of maternity leave in an interrupted manner. If you want to have it on an ongoing basis, you can do the paperwork through the web.

Parents can change work hours

Although it is not expressly a characteristic of maternity leave, it is a novelty that can help conciliation.

The Royal Decree expands and develops what is established in article 48 of the Statute of Workers in matters of Reconciliation of work and family life. The mother or father working for someone else could ask the company for a change in the duration and distribution of your day at work until your child turns 12.

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Now, as stated by the labor lawyer Jesús Ramírez, of reclamador.es, the new Decree obliges the company to admit that variation, provided that the request is made justifying some reasons “Reasonable and proportionate”.

Also, now, adds the expert, The company must respond in writing to the worker's request within a maximum period of 30 days. And if the woman does not agree with the decision, she can resort to Justice.

It can translate into a rearrangement of your schedule: entering earlier or later or doing continuous work, for example). But also the opportunity to work from home part of the day, if work allows.

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Required Documentation

You can find all the information you need about requirements, duration of rest and exceptional situations on the Social Security website, although the latest reforms are not updated.

According to the labor law expert, on the day of the child's birth, the mother must communicate and send the following documentation to the company:

Maternity leave certificate issued by the woman's doctor (if the mother was already on leave before the birth of her child). It is a common sick leave.
ID of the worker.
Birth certificate.
Family book or telematic application to register the baby in the Civil Registry, made by the hospital.
Communication of the period or periods in which you will enjoy the withdrawal.

Requirements to collect maternity benefit

They are the same for all workers, whether they are employed or self-employed.

In order to collect the benefit, Social Security requires that:

The woman must be registered in the Social Security or in an assimilated situation (unemployment, leave of absence ...).
Be up to date with the payment of Social Security contributions.
Have contributed at least 180 days in the previous seven years or 360 days throughout the working life.

But, as Social Security explains, this minimum period is gradual, depending on the age for women workers. Thus, a minimum contribution period is not required for those under 21 years of age and, until 26, the mother only has to have contributed "90 days in the seven years immediately prior to the start date of the break or, 180 days quoted throughout the working life".

In addition, if the mother has not quoted enough days, she can request a 42-day non-contributory subsidy, equal to 100% of the IPREM (Public Indicator of Multiple Effects Income), in force at the time of delivery (17.93 euros / day in 2019).

The aid is extended by 14 more days in case of large family, single parent family, multiple birth or disability of the son or mother. More information

100% of salary is charged

Or to be more exact, the total of the regulatory base, the daily amount that is obtained from dividing the gross salary between 30 days. This amount includes the proportional part of the extraordinary payments of the year.

To calculate it, the payroll of the month prior to childbirth is taken into account, in the case of employed mothers. The autonomous ones charge 100% of the average contribution base of the six months prior to the withdrawal.

If the mother assigns part of her predation to the father, she will be paid based on her regulatory basis.

And, in all cases, without IRPF retention, since a Supreme Court ruling ruled that paternity and maternity benefits are exempt from this tax.

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