12 questions and answers about the new paternity leave · Legal News

We must begin by clarifying that our legal system no longer speaks of maternity and paternity leave; Both the ET and the LGSS were modified by RDL 6/2019, and these suspensions of the employment contract and its consequent provision have been renamed: "Birth and care of the minor". In this way, in addition to equalizing the rights of parents, all people are included, referring to them as "parent other than biological mother".

The novelties derived from this new regulation still raise doubts regarding its application. We are going to try to solve the most frequent ones that arise in relation to paternity:

1 Does the two-day work permit for the birth of a child still exist?

No, the modification of article 37.3 ET has eliminated this two-day permit for birth. And both article 45 ET and art. 48 ET establish that the birth suspends the employment contract.

Therefore, if the contract is suspended due to birth, the old two-day paternity leave does not make sense.

2 How long is the contract suspended?

The thirteenth transitory provision ET contemplates a progressive application of this suspension, establishing the following:

- From April 1, 2019: the suspension of the birth contract has a duration of 8 weeks, of which the first 2 must be enjoyed uninterruptedly immediately after delivery.

- As of January 1, 2020: the suspension will be 12 weeks, of which the first 4 weeks will be uninterrupted.

- As of January 1, 2021: the suspension will already be 16 weeks, of which the first 6 must be enjoyed uninterruptedly.

The Basque Country is the only autonomous community that is already applying the 16-week suspension for the parent other than the biological mother.

In addition, until there is complete equality in the periods of suspension of both parents, the following particularities apply:

a) In the event of the death of the biological mother, regardless of whether or not she did any work, the other parent is entitled to the full 16 weeks of suspension provided for the biological mother.

b) In the case of birth, the other parent may continue to make use of the period of suspension initially assigned by the biological mother even if, at the time scheduled for the mother's return to work, she is in a situation of temporary disability.

c) In the event that one parent does not have the right to suspend their professional activity with the right to benefits in accordance with the regulations that regulate said activity, the other parent has the right to suspend their employment contract for a total of 16 weeks, without that no limitation of the transitory regime is applicable.

3 Can the biological mother give a week to the non-biological parent?

For now yes. The legislator has established a transitional period that offers this possibility until 2021, the date on which both parents will have the right to suspend the contract for 16 weeks.

Therefore, until that moment the weeks that can be transferred are:

- From April 1, 2019: the biological mother can assign up to 4 weeks of her non-mandatory suspension period to the other parent.

- As of January 1, 2020: the biological mother may assign up to 2 weeks.

- As of January 1, 2021: as the 16 weeks will be a right for both parents, neither will be able to transfer this right to the other.

4 Is it mandatory to benefit from this suspension or can it be waived?

- From April 1, 2019: the first two weeks from birth are mandatory.

- From January 1, 2020: the first 4 weeks will be mandatory.

- From January 1, 2021: the first 6 will be mandatory.

The remaining weeks are a right and not an obligation, therefore they can be waived.

5 Who decides how to exercise this right?

The art. 48 of the ET establishes in relation to the non-compulsory weeks that "they may be distributed at the will of the parent, in weekly periods in an accumulated or interrupted manner, full-time or part-time, and exercised from the end of the mandatory suspension after childbirth until the son or daughter is 12 months old.

Therefore, it is the parent, in principle, who decides how to exercise this right. Of course, the article adds: «The enjoyment of each weekly period or, where appropriate, the accumulation of said periods, must be communicated to the company at least fifteen days in advance».

If the two parents who exercise this right work for the same company, the business management may limit its simultaneous exercise for well-founded and objective reasons, duly motivated in writing.

6 How is it distributed in part-time shifts?

In the case of wanting to distribute the period part-time, a prior agreement between the company and the worker is essential, who must notify the company, at least fifteen days in advance, of the exercise of this right in the established terms, where appropriate, in collective agreements.

The agreement may be concluded both at the beginning of the break or at a later time and may extend to the entire rest period or part of it.

When the two parents who exercise this right work for the same company, the business management may limit their simultaneous exercise for well-founded and objective reasons, duly motivated in writing.

And being part-time, the suspension will be extended in time until reaching the time to which you are entitled.

7 How much is charged during the suspension of the birth contract?

In all cases, 100% of the salary base is charged.

It is Social Security and not the company that makes the payment of the benefit (unless this right is exercised part-time, in which the company will pay its part).

This amount does not include diets, restaurant vouchers or transportation bonuses.

8 Is there a job reservation in case of suspension due to birth?

Yes, the art. 48.1 of the ET establishes that reincorporation must be to the same job and with the same day; unless the right to reduce the working day of article 37 ET is used. Likewise, workers will benefit from any improvement in working conditions to which they may have been entitled during the suspension of the employment contract.

9 Are vacations not taken during the suspension of the birth contract lost?

The worker who is in suspension of contract due to birth has the right to enjoy his vacations in a different period, therefore they are not lost.

10 Can a worker be fired while enjoying birthright?

Yes, but the origin of the dismissal for reasons unrelated to that cause must be proven. Let us remember that art. 55.4 of the ET declares the disciplinary dismissal of workers null and void during periods of suspension of the employment contract due to birth, unless the origin of the dismissal is declared for reasons not related to the exercise of the permit.

11 How does this suspension affect the price?

During the situation of suspension of the contract, if the employer enters into an interim contract with the unemployed person to replace the worker with a contract suspended due to rest due to birth, a bonus of 100% is applied to the obligation to contribute in the company fees, including those corresponding to professional contingencies and those of joint collection, both for the substituted worker and for the contracted interim worker.

Likewise, if the employer enters into an interim contract with the unemployed person to replace workers with a suspended contract due to rest due to birth, they may enjoy a 100% discount on the company's Social Security contributions, including those corresponding to professional contingencies and those of joint collection.

12 Is this benefit exempt from personal income tax?

There is personal income tax exemption during the suspension of the birth contract (art. 7 h LIRPF).

The Judgment of the Supreme Court of October 3, 2018 (whose text you can consult here) established as a legal doctrine that "Public maternity benefits received from Social Security are exempt from Personal Income Tax".

The DGT interprets that this doctrine is equally applicable to paternity benefits received from Social Security.

In the next income campaign, taxpayers will only have to prepare and present their declarations using the fiscal data that is offered to them.

Following the knowledge of the ruling of the Supreme Court, the National Institute of Social Security has stopped making withholdings on the benefits paid, as they are exempt income.