Table of contents
The biological differences between men and women are an unquestionable fact. A society that pursues effective equality among its citizens must demand actions from the public authorities aimed at favouring women's equality in the world of work. One of the areas of special protection should be pregnancy, both during its development, especially if there is a risk during pregnancy, and in the subsequent upbringing, to minimize the impact of work activity on the biological process of motherhood.
The concern for the protection of pregnant workers’ health and safety was not expressed in the Spanish legal system until 31/1995 8th November Act, on the Prevention of Risks at Work (LPRL), with special emphasis on the contents of 26th article. This law lays the foundations for risk assessment of the job during pregnancy, the adoption of complementary preventive measures, the temporary change of job if it is not possible to adapt it and the suspension of the work contract if it is not possible to adapt it.
Years later, The Reconciliation of Family and Work Life of Working People Act (Act 39/1999) was passed, which created the economic benefit for risk during pregnancy. Considering the provisions of article 186 of the General Social Security Act, the protected situation is the suspension of the pregnant worker's contract when the job may have a negative influence on her health or that of the fetus, and it is not technically and objectively possible to change the job for another one that is compatible with her condition, or it cannot reasonably claimed on justified grounds. In other words, in order to determine whether or not to classify the risk situation, the risk assessment of the job must be taken into account in accordance with the provisions of 26th article of the LPRL.
At present, the amount of the benefit for risk during pregnancy is equivalent to 100% of the regulatory base corresponding to temporary incapacity due to professional contingencies.
Royal Decree 295/2009, of 6 March, crystallizes the regulation of the economic benefits of the Social Security system for maternity, paternity, risk during pregnancy and risk during breastfeeding. Among the many issues addressed by the Royal Decree, it is worth highlighting that, given that the situation of risk during pregnancy has been legally classified as an occupational contingency, the requirement of a previous contribution period to obtain it has been eliminated and its amount has been increased from 75% of the regulatory base corresponding to common contingencies, in force until now, to 100% of the regulatory base applicable to occupational contingencies.
Is temporary incapacity benefit available during a situation of risk during pregnancy?
The legislator distinguishes between occupational risk derived from work activity during pregnancy and subsequent breastfeeding, and any medical problem that poses a risk to the mother and/or fetus, but which is not related to the job performed. In this case we would be dealing with Temporary Incapacity due to common illness (75% of the Regulatory Base), as the risk factor is not the job itself.
However, reference should be made to the temporary incompatibility resulting from the two benefits (Temporary Incapacity and Risk during Pregnancy). If the worker is on medical leave, she cannot receive the benefit for risk during pregnancy. In this case, if the worker is on temporary incapacity, the pregnancy risk benefit cannot be recognised until the TD ends. On the other hand, the worker would be entitled to benefit for risk during pregnancy if the pregnancy occurs on the same day as the medical leave, as well as in those cases in which, having already applied for benefit for risk during pregnancy - and before it is recognised - the worker is in a situation of temporary disability.
This system of incompatibilities between the two benefits could give rise to situations of certain defenselessness, such as the case of a worker who applies for risk during pregnancy benefit and, before the corresponding decision is issued, becomes temporarily incapacitated (Judgment of the TSJ of the Canary Islands/Tenerife, 21st June 2021, rec. no. 33/2021).
ithin the allowance for risk during pregnancy, it is necessary to differentiate within R.D. 295/2009 between the rules applicable to employed workers (art. 35) and those applicable to self-employed workers (art. 43):
1. Employed women: entitlement to the allowance begins on the same day on which she suspends the employment contract or leave due to risk during pregnancy. The benefit is paid for the period of suspension or leave necessary to protect the safety or health of the worker or the fetus, and ends in the following cases:
- Suspension of the work contract due to maternity.
- Reincorporation of the woman to her job.
- Termination of the employment contract for legal reasons.
- Interruption of pregnancy.
- Death of the beneficiary.
2. Self-employed women: entitlement to the benefit begins the day after the medical certificate is issued by the medical services of the competent managing or collaborating entity, but the economic effects will be produced from the day of the effective cessation of the professional activity. The benefit will be paid for the period necessary to protect the safety or health of the worker or the fetus and will end in the following cases:
- Beginning of the maternity leave period.
- Resumption of the professional activity carried out.
- Sick leave from the special Social Security scheme in which the worker was included.
- Interruption of pregnancy.
- Death of the beneficiary.
In a situation of pluriactivity, can the worker be entitled to benefit in each and every job?
Pluriactivity is defined as the situation of a worker whose activities give rise to compulsory registration in two or more different social security schemes. Two points should be taken into consideration in answering this question:
- Where the situation of risk during pregnancy affects all the activities carried out, she will be entitled to benefit under each of the schemes if she meets the requirements laid down separately in each of them.
- If the situation of risk during pregnancy affects one of the activities carried out, you will only be entitled to benefit under the scheme in which the activities in which the risk exists are included.
Our employment lawyers can answer your questions about employment relationships, sick leave and dismissals. You can contact them here.
Labor Lawyer at Labor Law Department