In the weeks prior to the publication of the Royal Decree 370/2023, which modifies article 161.bis, currently article 206.bis, of the General Social Security Law, on the early retirement of workers with disabilities to a degree equal to or greater than 45%, there have been a large number of headlines, some more fortunate than others.
The modification of this norm is intended to soften the necessary requirements to achieve the early retirement modality of the disabled group with a degree equal to or greater than 45%, within a list of assessed disabling pathologies, most of them with a difficult insertion in the labor market or with low life expectancy.
It is true that it represents an advance for this group of workers in terms of the possibility of accessing this type of early retirement, but in order to better assess its impact we must have a complete vision and analyze each of the measures that the implementation of said standard implies for these workers.
The regulations in force until May 31, 2023 contemplate that a disabled worker with one of the pathologies established in article 2 of the RD 1851 / 2009, such as cerebral palsy, autism spectrum disorders, brain damage, schizophrenia, neurological diseases, etc. (specifically 20 pathologies), who accredited a degree of disability equal to or greater than 45% for one of these pathologies for a period of 15 years and a working life of at least 15 years of contributions could access early retirement from the age of 56.
The new regulations, applicable as of June 1, 2023, establish the following changes:
- Area of application. "It will apply to working people…. who, throughout their working life, have worked an effective time equivalent to at least the minimum contribution period required to be able to access the retirement pension, being affected during that time by any of the pathologies that cause disability listed in the annex and within that period for at least five years with a degree of disability equal to or greater than 45 percent, caused by the same pathologies in the terms provided in article 5.3".
In other words, the minimum contribution period that allows access to the ordinary retirement pension must be proven, 15 years of effective contribution and 2 of them in the last 15, which was already contemplated in the previous regulation.
It must be proven that during 15 years of contribution and effective work one of the disabling pathologies listed in the annex to the standard itself has been suffered and, the novelty, that during that time at least 5 years they were with a degree of disability equal to or greater than 45% produced by one of the pathologies in the annex.
In conclusion, there is a reduction from 15 to 5 years in the time that must be officially certified, but the need to contribute for 15 years with one of the established disabling diseases remains.
- Accreditation of disability. A double accreditation of the degree of disability and the disabling disease is established as a novelty to the previous wording.
- Medical report proving that one of the pathologies in the annex to the RD is suffered, stating the onset or moment of manifestation of the disease, either the date of birth or a later one.
- The accreditation of the degree of disability (equal to or greater than 45%) and of the pathology from which it derives, will be exclusively with an official certificate from IMSERSO or the equivalent body of the CCAA, indicating the date of onset or manifestation of the disability.
- As a novelty, the percentage of disability of 45% is considered accredited, if the sum of the percentages of disability and «complementary scales» reaches 45% and one of the annex diseases reaches 33% by itself.
Simplifying, although the accreditation of the percentage of 5% is reduced to 45 years, it continues to be required that one of the diseases assessed in the annex has been suffered for 15 years and that it accounts for at least 33% of the degree of total disability.
- Disabilities that may result in lowering the retirement age. They continue to be the same as those that already appeared in the previous RD, except that they are transferred from article 2 to the Annex, although the 4th Final Provision establishes the possibility and procedure for the inclusion of new pathologies.
It continues to be established that the diseases included in the annex are diseases in which «determine a widespread and appreciable reduction in life expectancy".
What we can extract from the various modifications is the reduction from 15 to 5 years in terms of the period of disability with 45%, but the accreditation of 15 years suffering from one of the pathologies in the annex and 15 years of contribution and effective work is still requested, and the need to prove that one of the pathologies established in the annex represents a minimum of 33% of the total degree of disability is added.
Finally, having analyzed the novelties, which will not mean a great change for many of the members of this group, an important reflection must be added: Actually accessing this early retirement modality is complicated, especially due to the seriousness of the diseases that must be suffered for its access. Many of these diseases give rise to permanent disabilities at the beginning (Cerebral Palsy, Amyotrophic Lateral Sclerosis, ...), or have very difficult access to the labor market (Traumatic Spinal Cord Injury, Multiple Sclerosis, ...) or their life expectancy is not very high and does not allow them to reach the age of 56 years.
Rosa Gálvez Sebastián
Labor Area of TOMARIAL
