| Abstract |
This study addresses the legal regime in force in Spanish law since January 2017 of the provision for paternity that corresponds (subject to compliance with certain requirements) to those who enjoy paternity leave; for whose analysis the characterization of paternity leave has been carried out by carrying out a brief examination of this figure in European Union law and later in our domestic law. In the context of EU law, paternity leave appears for the first time in the Resolution of the Council and the Ministers of Labor and Social Affairs of 29 June 2000 on the balanced participation of men and women in the activity professional and family life, which encourages Member States to evaluate the possibility that the respective legal systems recognize working men an individual and non-transferable right to paternity leave, while maintaining labor rights. Both directives, 2002/73 / EC and 2006/54, will subsequently regulate this permit by granting workers who enjoy it protection similar to that provided for women workers on maternity leave. For its part in our domestic law, the paternity leave will be recognized for the first time in the Organic Law for effective equality between men and women of March 22, 2007, in that norm is characterized by paternity leave as a closer figure to leave in the case of adoption or foster care than to the case of biological maternity; since it is devoid of any physiological connotation, relative to the health care of the beneficiary subjects. The recognition of this paternity leave implies the possibility of a de facto extension of the period of time available to the family to meet the needs generated by the arrival of a new child. With the intention, once again, to promote that the responsibilities generated by such a reason are assumed, at least in some part, by both parents, without necessarily reducing the rest time that corresponds to the mother and thus give greater importance to the father in the care of the children. Beginning in January 2017, workers who become parents can enjoy 4 weeks of paternity leave. Until then, parents have been enjoying 15 days of rest (13 days plus 2 for the Workers\' Statute). From 1-01-17 the permit was extended to 28 days. After a brief characterization of the paternity leave from which the paternity benefit originates, our study addresses the in-depth analysis of the legal regime of said benefit in Spanish law, the analysis concludes: - Paternity benefit will be paid to employed workers included in the social security scheme, provided that the requirements established in Article 165.1 LGSS are met and must be affiliated with and registered in the social security system or in a situation assimilated to discharge, upon the occurrence of the contingency or protected situation in the cases of childbirth, adoption or foster care - The economic benefit for paternity (as well as maternity) consists of a subsidy equivalent to 100% of the regulatory base established for temporary incapacity benefits derived from common contingencies, taking as reference the start date of the rest period. - The receipt of the paternity allowance (such as maternity) is incompatible with the payment of wages or salaries corresponding to the same period, as a result of the enjoyment of the childbirth leave or the adoption permit, saved for adoption or foster care, provided for in the Basic Statute of the Public Employee, art. 49 (a) and (b), with the exception of the benefits granted in connection with social action or the complementary ones of said Social Security benefit, and without prejudice to what is established for the part-time rest and in cases of multiemployment and pluriactivity (RD295 / 2009 art.23.9). - You are entitled to the paternity allowance from the same day the period of suspension or corresponding leave begins, in accordance with the applicable rules in each case. And it is extinguished by the lapse of the period of duration, by voluntary reincorporation to the work or activity, for causing the beneficiary retirement pension or permanent disability, or by death of the beneficiary. There is no possibility of transfer to the other parent of the part not enjoyed the permit. - The situations jurisprudentially assimilated to discharge are equated in case of maternity and paternity. With regard to the situations assimilated to the discharge in family care leave, it is also excluded (RD295 / 2009 disp.adic.4a), from its application. - As regards the situations assimilated to leave in family care leave, the exclusion (RD295 / 2009 disp.adic.4a) of its application to paternity (in the same terms as maternity) is also excluded. - The occurrence of situations of temporary incapacity and rest by paternity do not influence the duration of the paternity leave, whether the illness began before the birth, or whether it began during the rest, resulting in a regulation based on the same principle of irrelevance that the inspirer of regulation when it comes to maternity benefits, although the regulation is not exactly the same because of the need to adapt to the specialties of rest by paternity - The procedure for the recognition of the right to paternity benefit is initiated at the request of the interested party, by means of an application addressed to the competent Provincial Directorate of the corresponding management entity, according to the framing regime, of the Province in which that person has his domicile, in the standardized models established by the Social Security Administration. - Once all the requisites required to access the subsidy have been verified, the competent Provincial Director of the corresponding management entity (INSS) shall issue an express resolution and notify within 30 days, from the reception of the request of the interested party, the recognition or denial of the right to paternity benefit. Notwithstanding the foregoing, the subsidy can be recognized by provisional resolution. © 2017 Ministerio de Empleo y Seguridad |
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