Maternity allowance - what are the terms and conditions?
The terms and conditions of entitlement to maternity allowance are regulated primarily in the Act of 25 June 1999 on cash benefits from social insurance in the event of sickness and maternity (consolidated text, Journal of Laws of 2016, item 372, as amended), as well as in the Labor Code, i.e. Art. 179-183.
Maternity allowance - characteristics
The maternity allowance is an insurance benefit granted on the basis of the principles set out in the labor law "for the period of maternity leave, leave under the conditions of maternity leave, parental leave and paternity leave" (cf. Art. 184 of the Labor Code). It should be noted that the maternity allowance will not always be granted during the period of maternity leave, as discussed in more detail below.
Pursuant to the aforementioned Act, the maternity allowance is granted to the insured / insured person who:
gave birth to a child during the period of sickness insurance or during parental leave;
adopted a child up to the age of 7 for upbringing, and in the case of a child for whom a decision to postpone schooling was made - up to the age of 10
and applied to the guardianship court regarding his adoption, as well as the employee who accepted for upbringing as part of a foster family, with the exception of a professional foster family not related to the child, a child up to 7 years of age, and in the case of a child for whom a decision was made to postponement of compulsory education - up to the age of 10;
gave birth to a child during parental leave, including an employee who
during the childcare leave, she accepted the child for upbringing and applied to the guardianship court regarding its adoption (Article 29 (1) of BenefitsU).
If the insured mother of the child resigns from receiving the maternity allowance, after she has used the allowance for a period of at least 14 weeks after the delivery, the maternity allowance is granted to the insured father of the child who has obtained the right to maternity leave or has interrupted his / her gainful activity in order to provide personal care for the child. child (Article 29 (3) of the AllowancesU).
If the mother of the child (who is not entitled to social insurance in the event of sickness and maternity, as defined in the Act of 13 October 1998 on the social insurance system) takes up employment in the amount not lower than half of the full-time working time, the insured person is entitled to the maternity allowance the father of the child who has obtained the right to maternity leave, leave on the terms of maternity leave or parental leave, or interrupted the gainful activity in order to provide personal care for the child, until the allowance is exhausted, not longer than for the duration of the mother's employment (Article 29 (10)) Benefits U).
The parents of the child covered by the insurance may also benefit from the maternity allowance for the period corresponding to the period of parental leave. In such a case, the total period of maternity allowance may not exceed the amount of parental leave specified in the provisions of the Labor Code, however, it applies to a situation where one of the parents exercises the right to parental leave under other provisions (Article 29a, BenefitsU).
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Maternity allowance and termination of employment-related sickness insurance
It is worth indicating the situations in which employees are entitled to maternity benefits despite the termination of employment-related sickness insurance. This is the situation in the case of an employee whose employment ceased during pregnancy as a result of the declaration of bankruptcy or liquidation of the employer or in violation of the law, confirmed by a final court decision (Article 30 (1) of the Benefits), as well as an employee employed under a contract of employment for a period of time. determined with which the employment contract pursuant to art. 177 § 3 of the Labor Code was extended until the date of delivery (Article 30 (4) of the allowances).
In addition, it is worth mentioning that the maternity allowance is also granted to a mother who gave birth to a child during the period in which she was covered by sickness insurance on a basis other than an employment contract, e.g. under a mandate contract or running a business.
On the other hand, the maternity allowance is not payable for the periods of maternity leave for the period of unpaid leave, for the periods in which the insured retains the right to remuneration on the basis of special provisions, and for the period of temporary arrest or imprisonment, with the exception of cases where the right to the allowance results from sickness insurance for persons performing paid work on the basis of a referral to work while serving a sentence of imprisonment or pre-trial detention (Article 12 (2) (1) and (3) of Benefits (U)).
The amount of maternity allowance is regulated in Art. 31 Benefits U
Monthly maternity allowance for the period determined by the provisions of the Labor Code as the period of maternity leave, leave under the conditions of maternity leave and paternity leave is 100% of the allowance calculation basis.
As far as parental leave is concerned, the monthly maternity allowance is 100% of the allowance calculation basis for the first 6 or 8 weeks and 60% of the allowance calculation base for the remaining period determined by the provisions of the Labor Code falling after the periods indicated above, i.e. for the remaining 26 weeks of leave.
It is worth noting that the monthly maternity allowance amounts to 80% of the allowance calculation basis for the entire period corresponding to the period of maternity leave, leave under the conditions of maternity leave and parental leave in the case of the insured person who applied for full parental leave immediately after the maternity leave. .
The basis for the allowance calculation is, in accordance with Art. 36 Benefits U shall be the average monthly salary paid to the employee for the period of 12 calendar months preceding the month in which the right to this allowance arose. If the incapacity for work occurred before the expiry of the 12-month period, the allowance calculation basis is the average monthly remuneration for the full calendar months of insurance.
In a situation where an employee who has applied for the use of the entire maternity leave and then parental leave, and then resigned from the full parental leave or resigned from the maternity allowance for the period corresponding to the remaining period of parental leave (i.e. 26 weeks), is entitled to one-time adjustment of the maternity allowance received up to 100% of the allowance calculation basis. The compensation is due provided that the maternity allowance is not collected for the period corresponding to the period of parental leave in the relevant amount of leaves indicated above (Article 31 (4) of the BenefitsU).
It is worth emphasizing that an employee may combine work with one employer together with parental leave. Then the amount of the maternity benefit is reduced in proportion to the working time in which the employee combines the use of parental leave with the performance of work for the employer granting such leave.
Powers of the Social Insurance Institution and maternity benefit
It is worth recalling that the Social Insurance Institution is, in particular, entitled to make decisions on determining the entitlement to maternity benefits, the amount of benefits and the payment of benefits to persons entitled to these benefits after the end of insurance. The period during which the insured person is entitled to maternity allowance is determined on the basis of the employer's certificate of granting maternity leave. ZUS pays maternity allowance to persons entitled to benefits for the period after the end of insurance, insured persons subject to sickness insurance in Poland due to employment with a foreign employer, insured persons conducting non-agricultural activities and persons cooperating with them, insured persons who are clergymen. It is worth noting that payers of sickness insurance contributions who apply to sickness insurance for more than 20 insured persons should determine entitlements to maternity benefits and pay them out.
Finally, it should be mentioned that the claim for maternity allowance expires after 6 months from the last day of the period for which the allowance is due. If the failure to submit a claim for the payment of the allowance was due to reasons beyond the control of the entitled person, the 6-month period shall be counted from the day on which the obstacle preventing the submission of the claim ceased to exist. If the failure to pay the allowance in whole or in part was a consequence of an error of the contribution payer or the Social Insurance Institution, the claim for the payment of the allowance expires after 3 years (Art. 67 BenefitsU). Moreover, it should be emphasized that the maternity allowance paid to a person who has not acquired the right to this benefit or paid in an amount higher than the due benefit, is subject to reimbursement. However, the reimbursement of the undue benefit depends on the awareness that there is no basis for the benefit paid. Receiving undue maternity allowance in good faith will mean that the employee will not be obliged to return it (resolution of the Supreme Court of February 22, 1979, V UZP 7/78).
Maternity allowance - summary
To sum up:
The amount of the maternity allowance depends on the leave applications submitted by the employee related to parenthood and is, respectively, 100%, 80%, 60% of the base salary;
If the contribution payer reports not more than 20 people to sickness insurance, the maternity benefit is paid from public funds accumulated in ZUS, the right to this cash benefit is not borne by the employer.