Possibility of granting permission by birth and lactation to a newly admitted official.

The consultation concerns the possibility of granting a newly admitted career civil servant a birth permit and a nursing permit for a child under 12 months of age.

First, it should be noted that both the birth permit for the biological mother and the nursing permit for a child under 12 months are regulated respectively in article 49 letters a) and f) of Royal Legislative Decree 5/2015, of 30 October, approving the revised text of the Law on the Basic Status of Public Employees, hereinafter TRLEBEP, in its wording given by Royal Decree-Law 6/2019, of 1 March, on urgent measures to guarantee equal treatment and opportunities between women and men in employment and occupation.

Article 49.a) of the TRLEBEP provides that:

a) Birth permit for the biological mother: it will have a duration of sixteen weeks, of which the six weeks immediately after childbirth will in any case be mandatory and uninterrupted rest. This leave will be extended by two more weeks in the case of disability of the son or daughter and, for each son or daughter from the second in the case of multiple birth, one for each of the parents. (…)

In the event that both parents work and after the first six weeks of compulsory rest, the period of enjoyment of this leave may be carried out at the will of the parents, interrupted and exercised from the end of the compulsory rest after childbirth until the son or daughter reaches twelve months. In the case of interrupted enjoyment, a notice of at least 15 days will be required for each period of enjoyment and will be carried out for full weeks. (…)”

For its part, article 48.1.f) of the TRLEBEP regulates the nursing leave of a child under 12 months in the following terms:

“(…) they will be entitled to an hour of absence of the work that can be divided into two fractions. This right may be replaced by a reduction of the normal working day by half an hour at the beginning and end of the day, or by one hour at the beginning or end of the day, for the same purpose.

The permit referred to in this paragraph constitutes an individual right of civil servants, without its exercise being transferable to the other parent, adoptive parent, guardian or foster parent.

It is possible to request the replacement of breastfeeding time with a paid leave that accumulates in full days the corresponding time. This modality may be enjoyed only after the completion of the permit by birth, adoption, custody, foster care or the parent other than the respective biological mother. (…)”.

In accordance with the aforementioned regulatory framework, it is considered that the corresponding Personnel Unit must observe whether, at the date of application for the birth permit and/or the nursing permit, the staff member in question meets the requirements of the current regulations indicated and the factual budgets necessary to grant the enjoyment of these, taking into account the following paragraphs:

(i) Scope of application: On the date of application for the relevant permit, the staff member must be in active service and must serve in the corresponding Public Administration, in accordance with the provisions of article 2.1 of the TRLEBEP.

(ii) Causative fact: The birth of the child determines, in this case, the beginning of the birth permit for the biological mother. With regard to breastfeeding leave, it should be noted that the budget is in fact linked to the age of the child, since the child must be less than twelve months old.

(iii) Time frame: Royal Decree-Law 6/2019 establishes both the birth and adoption permits and the breastfeeding permit in a specific time frame constituted by the twelve months following the causative event, or the age of the birth.

The fact that the birth occurred prior to the inauguration of the interim official cannot, in this case, be understood as invalidating the causative act, since the figure of the birth permit, especially after the wording given by the aforementioned Royal Decree-Law, comes within a time frame, as a necessary period of rest for the mother in this case, a rest that is not untimely simply because the birth occurred a few weeks before the inauguration.

In the event that the official conveniently proves that she has not enjoyed the corresponding birth permit, and always within a maximum period of twelve months from the birth of the child, she may request the weeks of non-obligatory rest that she may exercise without interruption, provided that the other parent is working; the latter being a sine qua non requirement to be able to opt for this modality of enjoyment. Otherwise, the enjoyment of the aforementioned period will necessarily have to be uninterrupted.

In the same sense, it must be taken into account that the time frame that delimits the exercise and enjoyment of the breastfeeding permit will be a maximum period of twelve months from the birth of the child; it must be remembered, in any case, that the period to be taken into account to calculate the breastfeeding permit for the mother, in its accumulated form of enjoyment, must be from the day following the completion of her birth permit, and, in any case, until the date on which the child reaches twelve months of life.

Notwithstanding the foregoing, the fact that the birth occurred prior to taking office as a career official implies the loss of the first six weeks of mandatory and uninterrupted rest immediately following the causative event included in the birth permit.

Therefore, if at the time of formalizing the inauguration as a career official six weeks had already elapsed since the moment of childbirth, we understand that it would be possible to grant the remaining ten weeks of birth permit, with the time limit of twelve months of age of the minor. And that, once the birth permit is finished, permission for breastfeeding a child under 12 months of age could be requested immediately, with the same time limit.

In view of the foregoing, this Sub-Directorate General considers that it will be necessary to take into account the factual reality of the staff member and the concurrence of the requirements mentioned above, in order to determine whether she can enjoy the corresponding period of birth leave, as well as breastfeeding leave, in accordance with the regulations.

All of the foregoing is without prejudice to recalling that, according to the regime of competences of this management center, the answers to queries issued by this general directorate are merely informative and, consequently, are not of a binding criterion, nor do they give rise to rights or expectations of law, nor imply any link with the type of procedures to which they refer. Furthermore, in the absence of a mandatory or binding nature, the bodies receiving such replies may, where appropriate, finally take a decision that does not correspond to the opinion contained therein.

The responses to queries contained in this bulletin address the issues raised in the light of the regulations in force at the time of their issuance, so that such responses may be affected by subsequent legislative changes or judicial decisions.