As of June 1, 2023, the new absences from work derived from incapacitating menstruation, interruption of pregnancy and from the 39th week of gestation are already applicable.
Organic Law 2/2010, referring to sexual and reproductive health and the voluntary termination of pregnancy, is modified by the Law Organic 1/2023, of February 28 (BOE 01/03/2023). Let's look at these situations in detail:
Secondary disabling menstruation
The text states that special IT situations will be recognized as "the disability situation derived from a dysmenorrhea generated by a previously diagnosed pathology”.
In turn, the Law defines secondary disabling menstruation as "a situation of disability derived from a dysmenorrhea generated by a previously diagnosed pathology”.
Although these pathologies are not specified, as detailed in the law, they are listed as examples: "endometriosis, fibroids, pelvic inflammatory disease, endometrial polyps, polycystic ovaries, dysuria, infertility, heavier than normal bleeding," among others. .
Voluntary or miscarriage
The law indicates that a special IT situation will be considered "due to the interruption of pregnancy, whether voluntary or not, while receiving health care from the Public Health Service and is unable to work." If the interruption of the pregnancy was due to an accident at work or occupational disease, it will be considered a IT situation due to professional contingencies.
From the 39th week of gestation
The last situation that will be recognized as a special case of TI occurs in the case of pregnancy of the working woman from the first day of the 39th week of gestation until delivery”, unless she is in a situation of risk during the pregnancy.
This last case, unlike the previous ones in which no minimum period was required, is conditional on the woman meeting the same qualifying period required to access the childbirth and care benefit (LGSS Art. 178).
- Under 21 years old (at the date of the start of the break): none.
- Between 21 and 26 years: 90 days within the immediately preceding 7 years; or 180 days in the entire working life.
- Over 26 years: 180 days within the immediately preceding 7 years; or 360 days in the entire working life.
During these situations, the obligation to contribute is maintained (LGSS art.144.4 redacc LO 1/2023).
These rights are also recognized for women in the maritime fishing sector (Law 47/2015), in the Armed Forces (RDL 1/2000; RD 1726/2007), in the Justice Administration (RDLeg 3/2000), State Civilians (RDLeg 4/2000); Administrative Mutualism (RD 375/2003) or Judicial Mutualism (RD 1026/2011).
Likewise, it will also apply to the Self-Employed and the Special Regime for Coal Mining (REMC), as provided for in the criteria of the General Sub-Directorate for Planning and Legal Assistance of the INSS (Criterion 14/2023 of June 1, 2023). .
But... Are these types of casualties really new?
Well, these casualties were already recognized as a common disease when the medical practitioner of the public health service considered it so, but not their provision, in which, yes, we can observe a relevant change.
With the previous regulation, in the three cases described above, benefits did not start to be received until the fourth day of sick leave, and the amount thereof was 60% of the regulatory base until the twentieth day of sick leave.
With the regulatory changes produced, the amounts of the benefit remain as follows:
Secondary disabling menstruation, the modification establishes that the first three days of sick leave, which were covered by the discount in the worker's payroll, are now fully covered by Social Security.
Voluntary or miscarriage y low from the 39th week of gestation, Social Security will be the entity responsible for the subsidy from the day after the sick leave, and "puts the full salary corresponding to the day of sick leave in charge of the employer."
It also establishes a exception in which, if the worker had found herself in a situation of risk during the pregnancy, "the pregnant woman will continue to receive the benefit corresponding to said situation as long as it must be maintained."
Let's see the situation in a summary table:
And as almost always when a new regulation or modification comes into force, the system is not prepared for its management.
So, in the network news bulletin no. 07/2023, of May 16 They tell us how to apply it until it is correctly implemented, which is none other than a greater workload for professionals: "Until the implementation of the automatic application of the listing conditions associated with each of the 3 new special IT situations (...), for the application of these listing conditions to the payment of installments, said listing must be requested. application through the “Special IT Situations” procedure of the CASIA application, located in the following route – Affiliation, registrations and cancellations/variation of third-party account/Sit data. IT Specials-».
Merce Sanchez Rodriguez
Labor Area of TOMARIAL
