2023-08-28 01:49:24
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How a maternity salary request works at the INSS The maternity salary after social security reform underwent some changes. Although the benefit is popularly known as maternity leave, the leave refers to the leave itself from the activity due to adoption, pregnancy, childbirth, miscarriage or legal abortion.
The maternity salary corresponds to the receipt of the benefit, which is conditional on effective leave (removal), under penalty of suspension of the benefit (Article 93-C of Decree 3048/99).
We will see some particularities of this benefit for female workers in 2020.
What does the maternity salary consist of after Social Security reform?
The maternity salary after the legal reform has not undergone changes in its substance, such as its definition. It is a social security benefit that pays for the mother’s absence due to new offspring or her loss (spontaneous or legal abortion).
Miscarriage is the natural loss of a baby, who for some reason did not complete the pregnancy. Legal abortion is the one permitted by criminal law, that is, it does not have natural causes, but is supported by legal reasons for the protection of the mother (rape or to save the pregnant woman’s life). In these cases, upon medical certificate, the pregnant woman will be entitled to two weeks of maternity salary (Article 93, § 5, Decree 3048/99).
Until recently, the adoptive mother received the maternity salary in different periods depending on the age of the adopted person. The jurisprudence had already been recognizing the unconstitutionality of this differentiation, which has now been officially incorporated by Decree 10.410/20, which extinguishes this unequal treatment.
However, there are still criticisms, since article 93-A of decree 3048/99 allows maternity pay for those who adopt or obtain legal custody in the adoption of children up to 12 years old. It is important to point out that the adoption of adolescents in Brazil is very little engaged, and the new regulation makes this reality worse. Probably, adopters of older children will be able to revert this milestone in court, since the minor has the right to adapt and be integrated into the new family, which requires some time of coexistence and interaction.
In the case of adoption, the adoptive mother must not face any obstacles in receiving the salary if the biological mother also received it. Both have the right if they are insured by Social Security (INSS), by article 93-A, paragraph 1, of decree 3048/99.
As a rule, with the exception of abortion, the term of the maternity salary is 120 dias, even in the face of early delivery (premature baby). It is possible, however, that exceptionally, the period of leave of 120 days be extended for another two weeks if there is a need for rest through medical-expert evaluation (Article 93, § 3, Decree 3048/99).
Employed mothers (with a formal contract) must apply for the benefit directly from the employer, while the others must apply to the INSS. We know, however, that many employers dismiss workers before they claim the right, which is why the Brazilian Courts understand that it is possible to apply directly to the INSS if there is a denial of the concession or dismissal by the company, by express application of article 97, paragraph single of decree 3.048/99 (Case number: 0002512-75.2017.4.03.6325, Special Federal Court of the 3rd Region, Bauru, SP).
There is a project, instituted by law 13.257/16, called “Citizen Company” that allows the extension of the license for another 60 days (totaling 180 days). The mother can apply if the company she works for supports this project. In exchange, the participating companies receive tax advantages, such as maternity salary deductions from social security debts or corporate income tax.
Grace period
Grace period is the minimum number of monthly contributions essential for the beneficiary to be entitled to the benefit. The existence or not of this minimum will depend on the type of insured person:
· 10 months of minimum contribution: for Individual (self-employed), optional (without own income) and special insured (rural worker);
· Grace period waived: insured employees, domestic servants and independent workers (who are active on the date of removal, childbirth, adoption or custody or at least during a grace period – unemployment for less than 2 years, as a rule). These people do not need to have a prior contribution to be entitled to maternity pay;
In the event of loss of insured status, the worker must fulfill half of the grace period again, that is, five months, according to article 27-A of Law 8.213/91, if he is insured with a grace period not waived.
Benefit amount and grace period
The value of the benefit cannot be less than the minimum wage. This is even the rule for special insured persons (rural workers), who will receive a minimum wage as maternity pay. This is a rule that did not change the maternity salary after the pension reform.
For employed and self-employed insured persons, their total remuneration will be maintained, which must be paid by the company and reimbursed by the INSS through tax credits, pursuant to article 94 of Decree 3048/99.
For this reason, the INSS does not use the benefit salary to calculate the maternity salary, as there will be full replacement and replacement of the remuneration itself. Look:
For the domestic insured, the last contribution salary will be considered (remuneration declared by the employer). As for the hypothesis of MEI, optional, individual contributor, intermittently employed and unemployed, the average of the 12 last contribution salaries will be calculated (remuneration declared in the social security system). The benefit will result from this account, in accordance with Articles 100, 100-A and 100-B of Decree 3048/99.
By disregarding the benefit salary and actually working with the average wage of workers, the social security benefit generally respects the insured person’s standard of living and replaces payment with regular work (Articles 72 and 73 of Law 8213/91).
Finally, the beneficiary of the maternity salary does not need to contribute to the INSS while enjoying the benefit, another element of preservation of the mother’s remuneration. The recent judgment of the Federal Supreme Court on issue number 72 (judged on August 5, 2020) established the legal argument that “it is unconstitutional to levy the social security contribution paid by the employer on the maternity salary”. Neither employer nor employee pay the social security contribution of the worker who is receiving maternity salary.
Documents and deadline for application
Each category of insured must provide proof of their condition as a social security beneficiary (INSS bond), even if they are in a grace period (unemployed for less than 2 years, as a rule).
The documents normally required are listed below:
· Social security contribution payslips or work card, in addition to identification documents (RG, CPF, CNH);
· Medical certificates or expert reports (pregnancy, early delivery, abortion);
· Birth certificate of the baby (for insured persons who claim the benefit after childbirth);
· Judicial term of custody or adoption of the child.
As for this last requirement, there are some details that must be observed. The insured applicant, for example, must expressly appear in the court term as an adopter or legal guardian in order to be entitled to the maternity salary. Watch:
It is necessary for the interested party to instruct the application for the maternity salary with the necessary medical tests. The request can be made via the internet (cell phone application or “MEU INSS” portal), remembering that the Social Security body may request expertise from the local authority doctor, if it deems it necessary.
In the event of the death of the pregnant woman, the spouse or partner will receive the salary for the remaining time, or, if they are also insured, they will receive the benefit “during the period between the date of death and the last day of termination of the original maternity allowance” (Article 93-B, Decree 3048/99). In this case, the surviving spouse must apply for the benefit until the last day of the maternity salary to which the pregnant woman would be entitled.
When should I return to work?
As soon as maternity leave ends, the mother must return to work. It is important to remember that temporary job stability lasts only up to five months after the birth, therefore, if your company adheres to the “citizen company” project (6 months of leave) or if the insured person has amended vacation with the leave, admitted by the company, the return to work will not be protected by the legislation and the worker may be dismissed without just cause (article 10, ADCT, Federal Constitution).
Exceptionally, however, it is possible that in 2020 the worker has accumulated job stability due to the suspension or reduction of the workday, due to the coronavirus pandemic, in view of the adoption by the employer of the emergency plan of Law 14.020/20, available to the company (article 10, III). In this particular case of the pregnant woman, this stability period due to a change in the employment contract due to the pandemic, will have a period equivalent to that agreed by the rules of Law 14.020/20, but it will only start to be counted from the end of the pregnant woman’s provisional stability (five months after delivery).
We can say, in this context, that the insured employee participating in this situation of abnormality due to a public calamity, will have the period of stability extended and cannot be dismissed without just cause, without the employer paying the indemnity penalties.
How does paternity leave work?
As a rule, paternity leave lasts for five days and must be applied for at the company upon presentation of a birth certificate (the leave will be paid by the company).
However, the employee who works in a place participating in the “citizen company” project may extend his paternity leave for another fifteen days, remaining on leave for a total of twenty days, as the Constitution, in its article 7, item XIX, guarantees five days, while the program eligible by the company will take care of another fifteen (law 13,257/2016).
To do so, it is necessary to check whether the employer has adhered to this benefit authorized by law, at which time the interested party must expressly communicate to the company their willingness to enjoy it.
brief conclusions
In view of the exhibition carried out, the future or recent mother should stick to the employment relationship she has to inform herself of the applicable rules for obtaining and applying for the right to maternity salary.
Unfortunately, it is very common to see women being fired due to the confirmation of pregnancy or the need to leave for childbirth, especially if the woman has illnesses and/or disabling medical conditions during pregnancy, which is perfectly possible.
In this way, it is essential to be aware of the circumstances of the pregnant woman’s dismissal and the verification of the severance payments made, which must contain the amount of the maternity salary during the entire period of leave, in addition to compensation for breach of provisional stability and other overdue amounts, always with the exception of just cause (the worker’s right to dismiss within the hypotheses of the law).
Get in touch with a specialist lawyer of your choice and protect your rights!
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