New Factors Determining Temporary Incapacity in Spain

Published on 1 June 2023

Spain’s new Organic Law 1/2023, of 28 February 2023, which amends Organic Law 2/2010, of 3 March 2010, on Sexual and Reproductive Health and the Voluntary Termination of Pregnancy, has just come into force and has amended arts. 169, 172 and 173 of the General Law on Social Security (LGSS), approved by Royal Legislative Decree 8/2015, of 30 October 2015.

Monika Bertram Abogada +34 91 319 96 86

Consequently, as of 1 June 2023, the following physical circumstances of working women have become factors that determine their temporary incapacity:

  1. Incapacitating periods à associated with pathologies such as endometriosis, fibroids, pelvic inflammatory disease, adenomyosis, endometrial polyps, polycystic ovaries, or any kind of difficulty in menstruation, which may involve symptoms such as dyspareunia, dysuria, infertility or heavier than normal bleeding, among others.

In order for a working woman to be eligible for the corresponding social security benefit, it is not necessary to prove a minimum contribution period.

  1. Abortion, both voluntary and spontaneous à for as long as medical treatment is received from the Public Health Service and the woman is unable to return to work;

In order for a working woman to be eligible for the corresponding benefit, it is not necessary to prove a minimum contribution period.

  1. Pregnancy à from the first day of the 39th week of gestation. In order for a working woman to be eligible for the corresponding benefit, the following minimum contribution periods must be proved:

a. For women over 21 and under 26 years old à at least 90 days of social security contributions within the seven years immediately preceding the start of the leave.

b. For women aged 26 and over à at least 180 days of social security contributions within the seven years immediately preceding the start of the leave.

As regards the payment of the benefit, the following should be considered:

a. Incapacitating periods: the benefit will be paid by the Spanish social security authority from the second day of sick leave.

b. Interruption of pregnancy/gestation referred to in Section 2 above: the benefit payable by the Spanish social security authority will be paid from the second day of leave. The employer, on the other hand, must pay the full salary corresponding to the first day of leave.

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