Paternity leave: duration, requirements and how to apply
Manuel FernándezWith the arrival of a hopeful new year, many things change, and one of them is paternity leave. Are you expecting a baby or have you just become a father? Happymami gives you the answers about the new paternity leave.
Paternity leave
What is paternity leave?
Paternity leave, also known as parental leave, is a work benefit that grants fathers (and in some cases non-biological carers) the right to take time off work for a specific period after the birth or adoption of a child. The purpose of this leave is to allow fathers to spend time with their new child and take an active part in their care and upbringing.
That is why paternity leave has become an important aspect of gender equality in the workplace, as it allows both mothers and fathers to share the responsibility of caring for newborn or adopted children. This promotes a work-life balance and makes it easier for fathers to take an active part in raising their children right from the start.
How do you apply for paternity leave?
The process of applying for paternity leave in Spain is subject to a series of steps and requirements that must be followed precisely. Below, we will detail the procedures available for fathers who wish to benefit from this leave and how to meet the necessary obligations.
The employee is responsible for informing their employer with a notice period of at least 15 days before taking paternity leave. It is important to note that this notification must comply with the terms set out in the relevant collective agreement, which may vary in terms of deadlines.
Once the birth, adoption or fostering has taken place, the employee has a maximum of 15 days to notify the National Social Security Institute (INSS) of these circumstances. This notification is essential to start the process of applying for paternity leave.
For workers covered by the Special Sea Regime, the application must be submitted to the Social Marine Institute (ISM). This ensures that employees who work in maritime activities can also benefit from this leave.
Today, fathers have several options for applying for paternity leave in Spain:
Online application
Through the “Tu Seguridad Social” portal, anyone interested who has a digital certificate or a username and password for Cl@ve can apply for the benefit by completing the required details and attaching the corresponding documentation. Even if you do not have electronic identification methods, you can use the platform for procedures without a digital certificate from the INSS to carry out the process.
Application by post
This option involves downloading and completing the application form with the necessary documentation, and sending it by ordinary post to the corresponding Provincial Office of the INSS or the ISM.
In-person application at a CAISS
For those who prefer to apply in person, it is necessary to book an appointment in advance. Afterwards, the application and the required documentation must be submitted at one of the Social Security Information and Advice Centres (CAISS).
How much do you get during paternity leave?
This benefit is calculated on the basis of the regulatory base, a technical term that describes the amount on which the allowance is determined. Let's break down how this calculation is done in a more understandable way.
First, the regulatory base is set at 100% of the contribution base for common contingencies for the month before the month immediately preceding the birth. This may sound complicated, but in simple terms, it is the amount on which the worker has been paying contributions during that period.
If a worker has been with the same company for a full calendar month, this amount is divided by 30 days. This means that a daily average is calculated based on their monthly contribution.
If, on the other hand, the worker joined the company in the month before the event (birth or adoption), the contribution base for the month before the leave begins is used.
If the worker started at the company in the same month as the event, the contribution base for that month will be used to calculate the regulatory base.
For self-employed workers, the financial benefit is established in a similar way. It is calculated by taking 100% of a regulatory base determined by dividing the sum of the contribution bases recorded during the six months immediately before the month prior to the birth or adoption by 180 days. This ensures that self-employed workers also receive adequate support during this important period of their lives.
Does paternity leave have requirements?
The regulations state that this right is an “individual right of employees, whether men or women, and cannot be transferred to others for their use”. It is intended to be a “parental leave aimed at caring for a son or daughter, or a foster child for a period of more than one year, until the minor turns eight years old”.
The possibility of applying for paternity leave in Spain is an invaluable right for future fathers, but it is important to understand the requirements that must be met to access this benefit. Here we explain in detail what is needed:
Registration with Social Security
First and foremost, it is necessary to be registered with Social Security. This means that the worker must be in active status, which implies being registered and up to date with their contributions. Even if a worker is not currently contributing due to their employment situation, they may be in what is known as “active-status equivalent”, which means they are still protected by Social Security.
Keeping up with compulsory contributions
In addition to registration, it is essential to be up to date with the payment of compulsory contributions to Social Security. This ensures that the worker is in good financial standing with regard to their contributions to the social security system.
Minimum contribution period
Another factor to consider is the minimum contribution period. This varies according to the age of the person in question:
- Under 21: no minimum contribution period is required.
- Between 21 and 26: a minimum of 90 days of contributions in the 7 years before the start of the leave, or 180 days of contributions over the whole working life before that date, is required.
- 26 or over: a minimum of 180 days of contributions in the 7 years before the start of the leave, or 360 days of contributions over the working life before that date, is required.
These requirements are designed to ensure that those who apply for paternity leave have a certain amount of work experience and contributions to the social security system.
What is the new 2023 paternity leave about?
Spain faces the task of adjusting its legislation to accommodate the new eight-week leave for fathers with children under eight years old before 2 August 2024. Last week, the Government approved a Royal Decree-Law with the aim of implementing the European guidelines on reconciling work and family life.
This decree introduced a new leave for caring for children, although initially without financial compensation. However, European Directive 2019/1158, issued on 20 June, establishes that these leaves must be paid from 2 August 2024. Therefore, according to Asthur, it will be necessary to wait for any regulations that confirm their paid nature before the aforementioned date.
The directive, in its article 8, requires Member States to ensure that workers who make use of these leaves “receive pay or a financial benefit” and they must do so in a way that makes it easier for both parents to take parental leave.
How long does the new paternity leave last?
The new paternity leave gives fathers the opportunity of up to eight weeks to care for their children, either continuously or intermittently (by days or weeks), and with the flexibility to choose part-time or full-time.
This valuable leave is valid until children reach the age of eight. To make use of it, workers must apply with ten days' notice (or fifteen days in the case of civil servants), unless there are unforeseen circumstances that prevent it. It is an individual right available to both men and women, with no possibility of transferring its use to third parties.
Benefits of the new paternity leave
Pay
The Government has given the go-ahead to a series of additional paid leaves aimed at improving the well-being of workers. These include the possibility of taking 15 calendar days to formalise a civil partnership. In addition, the duration of leave for an accident or serious illness has been extended from two to five days, granting greater flexibility in difficult situations.
A new two-day leave is also introduced in the event of the death of a civil partner, and another of four days for circumstances of force majeure, such as accidents or serious illnesses affecting relatives up to the second degree, such as siblings, grandparents or grandchildren. These measures represent a significant step forward in supporting workers and their families at crucial moments in life.
Nullity of dismissal
The recently enacted regulation extends the circumstances under which a dismissal can be considered null and void. These additional circumstances include the dismissal of an employee who is making use of their parental leave, who has suffered an accident or serious illness in their partner or a relative up to the second degree of kinship, or who is in the process of adapting the duration and schedule of their working day.
In other words, this new regulation strengthens employment protection by recognising that dismissing a worker in these situations is inadmissible and may be considered null and void under the law.
Flexibility
The Decree-Law introduces provisions that give workers the flexibility they need to adjust their working hours more conveniently. This adaptation may cover changes in the distribution of the schedule or even the mode of work, moving from on-site work to remote work, especially when the employee is responsible for caring for children over twelve years old, their spouse or civil partner, relatives up to the second degree of kinship, or any other dependent person living in the same household.
If the company does not have a collective agreement that specifically regulates this right, a period of 30 days is established to start a negotiation process between the company and the worker. If the company does not respond within this period, the leave applied for will be considered granted de facto.
In addition, it is important to note that, once these adaptive paternity leaves have ended, the company does not have the power to deny the worker their return to their job and their previous working conditions. This provision seeks to guarantee stability and continuity of employment after the adaptation of working hours for family care reasons.
Civil partnerships or single-parent families
As well as granting workers a period of 15 days of leave for registering as a civil partner, it is established that they have the right to request a reduction in their working hours, even by up to half of the working day, with a corresponding proportional reduction in their salary. This provision seeks to provide the time and flexibility needed to care for and support their partner or the latter's relatives, extending this responsibility to the second-degree relatives of the civil partner.
Likewise, workers are granted the right to request a leave of absence of up to two years for the purpose of providing care and attention to their civil partner or the latter's relatives, further extending the protection and work flexibility for those who find themselves in situations of family need. These measures reflect an inclusive and understanding approach to civil partnerships and the importance of supporting workers in managing their family responsibilities.
Likewise, the recent Royal Decree extends the period of leave for birth, adoption, guardianship for adoption or fostering of children with disabilities to 20 weeks in the case of single-parent families.
Conclusion on the new paternity leave
In conclusion, Spain is in the process of adapting its legislation to comply with the new European guidelines that promote a balance between work and family life. The recent Royal Decree-Law has established an important leave for caring for children, although initially without financial compensation.
However, European Directive 2019/1158 has set a defined deadline, from 2 August 2024, for these leaves to be paid. This marks an important milestone in supporting parents who wish to care for their children, ensuring that they can do so without financial worries.
Ultimately, this legislative development reflects the commitment of Spain and the European Union to promoting a healthy balance between work and family life, recognising the importance of strengthening family bonds in the first years of children's lives.
