Work and pregnancy: employment rights, sick leave and risk during pregnancy

Being pregnant and continuing to work raises many very specific questions: can I ask for a change of position? Who pays me if my job poses a risk to the baby? Is ordinary sick leave the same as risk leave during pregnancy? These questions often come up all at once, usually when you are already exhausted and have little desire to read the Official State Gazette (BOE).

Here is a practical guide, based on current legislation (the Workers’ Statute, the General Law on Social Security and the Occupational Risk Prevention Law), so you know what you can request, from whom and when.

Quick summary: types of leave and permits during pregnancy

Situation	Who manages it	Amount	Duration
Sick leave for common illness (IT)	GP + INSS	60% of the regulatory base (days 4-20), 75% from day 21	For as long as the illness lasts
Risk leave during pregnancy	Collaborating mutual insurer + employer	100% of the regulatory base	Until the birth leave begins
Birth leave (formerly “maternity leave”)	INSS	100% of the regulatory base	16 weeks (6 compulsory after childbirth)
Adaptation or change of position	Employer (with medical report)	Full salary	As long as the risk exists
Leave for prenatal examinations	Employer	Paid	As much time as necessary, with prior notice

Your basic rights as a pregnant employee

Article 26 of the Occupational Risk Prevention Law obliges the employer to assess the risks of your position as soon as you notify the pregnancy. If there is a risk to you or the baby, it must adapt the conditions (schedules, tasks, shifts).

Furthermore, the Workers’ Statute protects against any dismissal or unfavourable treatment on grounds of pregnancy. A dismissal under these circumstances is considered null and void, unless the employer proves an objective cause unrelated to the pregnancy.

When and how to tell your employer about the pregnancy

There is no legal obligation to notify it at any specific moment. You may do so when you feel comfortable, although it is advisable to do so early if your job involves risks (laboratory work, prolonged standing, night shifts, contact with chemicals, lifting loads, radiation, etc.), because the protections only take effect from the moment the employer is informed.

The usual practice is to notify it in writing (an email is sufficient) and attach the pregnancy report from the Public Health Service or your midwife.

Adaptation of the workplace

This is the first step before considering sick leave. The employer, with the report from the Occupational Health Service and the doctor of the National Health System, must:

1. Modify the conditions of your position (avoid night shifts, more frequent breaks, no lifting of weights, teleworking if possible).
2. If this is not feasible, move you to a position compatible with your condition, even if it is of a different category, while maintaining your salary.
3. Only if a change is also not possible is risk leave during pregnancy activated.

Sick leave for common illness during pregnancy

This is the “ordinary” medical leave: disabling nausea, threatened miscarriage, hypertension, gestational diabetes, severe back pain… It is issued by your GP or specialist. It is paid by Social Security (or by the mutual insurer, depending on contributions) at the usual temporary incapacity rate.

It does not require that work be the cause of the problem. If you are unwell, you are unwell.

Risk leave during pregnancy: what it is and how it differs

It is a specific benefit (Article 186 of the General Law on Social Security) for when the workplace is incompatible with pregnancy and the employer cannot adapt it or relocate you. It is not ordinary sick leave: it is a Social Security benefit managed by the collaborating mutual insurer with which your employer has arranged coverage for occupational contingencies.

The major difference from IT: you receive 100% of your regulatory base from the first day, with no reduced percentages.

How to apply for it, step by step

1. Report from the NHS doctor or midwife certifying the pregnancy and the number of weeks.
2. Certificate from the employer describing your position, tasks and risks.
3. Declaration from the employer that it cannot adapt the position or relocate you.
4. Application to the mutual insurer with all this documentation. The mutual insurer issues the medical risk certificate.
5. With that certificate, the employer suspends the contract and you apply for the benefit.

If the mutual insurer refuses to issue the certificate and you disagree, you may file a claim with the INSS or go to court. This situation is more common than it seems: many rulings have ended up recognising the right when the mutual insurer had said no.

Birth leave and childcare

It consists of 16 weeks for each parent, non-transferable. The first 6 after childbirth are compulsory and full-time. The remaining 10 may be taken continuously or in weekly periods within the 12 months following birth, subject to agreement with the employer.

It is paid at 100% of the regulatory base and managed directly by the INSS. For single-parent families, additional weeks are currently recognised according to the latest case law of the Supreme Court; it is advisable to consult your specific situation, as the regulations are evolving.

Paid leave for prenatal examinations and childbirth preparation

You are entitled to be absent from work, with full salary, to attend pregnancy follow-up appointments and childbirth preparation classes, provided you must attend during working hours. Simply give notice and justify it with the appointment slip or certificate.

If you travel for personal reasons during this time, you may wish to review the recommendations by trimester for travelling while pregnant.

Protection against dismissal

Any dismissal during pregnancy, risk leave or birth leave is automatically null and void, unless an objective and entirely unrelated cause is proven. Nullity entails mandatory reinstatement and payment of salaries accrued during proceedings. You do not need to have notified the pregnancy for this protection to apply in the event of an unfair disciplinary dismissal.

Frequently asked questions

Can I request risk leave if I work nights?
Yes, night and shift work is expressly recognised as a risk factor in Royal Decree 298/2009. First an attempt is made to change the shift; if this is not possible, the benefit applies.

What if I am self-employed?
Self-employed workers are entitled to the benefit for risk during pregnancy if they are up to date with payments and contribute for occupational contingencies. The amount is also 100% of the regulatory base.

Can the employer refuse to adapt my position?
It must technically justify why this is not possible. If it does not, you may go to the Labour Inspectorate. And if there is a real risk and no adaptation is made, risk leave applies directly.

Do I receive the same pay on ordinary sick leave and on risk leave?
No. Ordinary sick leave pays percentages (60-75%); risk leave during pregnancy pays 100% of the regulatory base from day one.

What if I have a multiple pregnancy or complications?
Birth leave is extended by one week for each child from the second onwards. In the case of premature birth with hospitalisation longer than 7 days, the leave is extended by as many days as the baby is hospitalised, up to a maximum of 13 additional weeks.