Maternity pay is a crucial benefit that safeguards the well-being of both the mother and the baby during a significant life stage.
Many lawyers and clients have uncertainties about its operation, entitlement, and benefit valuation, despite its widespread recognition.
This article will provide all the information necessary to effectively and confidently help your customers understand the topic.
What is salary-maternity?
Maternity pay is a pension benefit provided by the INSS to individuals who temporarily leave work due to childbirth, adoption, legal guardianship for adoption, or non-criminal abortion.
It aims to provide financial support for mothers while they focus solely on caring for their newborn or adopted child, ensuring their financial stability during this significant period.
This entitlement is ensured by the Federal Constitution and Law no. 8.213/91, which regulates social benefits in Brazil.
To learn more about the welfare benefits provided by INSS, be sure to read our complete article on the topic.
Distinguishing between salary during maternity leave and maternity benefits
Many individuals often think of “salary-maternity” and “auxiliary-maternity” as distinct terms, but it is crucial to understand that they have the same meaning.
Both terms refer to the same welfare benefit, with only differences in their names depending on the region or context.
How does salary maternity work?
Maternity benefits serve as a substitute for the insured individual’s income while on leave.
Women who are insured by the INSS, meaning they are contributing to Social Security under various categories such as formal workers, self-employed individuals, individual microentrepreneurs (MEIs), domestic workers, and even unemployed individuals who maintain their insurance status may request it.
The request needs to be submitted through the My INSS website or app along with the required supporting documents, such as a birth certificate or relevant paperwork for non-criminal adoption or abortion.
Formal employees do not have to request this as the company pays them directly and is later reimbursed by INSS.
Who qualifies for maternity benefits?
The benefit is accessible to policyholders who fulfill at least one of the following criteria:
- Formal workers are entitled to benefits paid by their employer automatically according to Article 72, Section 1 of Law No. 8.213/91.
- Domestic workers who are making contributions to the INSS are eligible (Article 73, Section I, Law No. 8,213/91).
- Individuals who are self-employed, micro-entrepreneurs, or insured persons paying social security contributions voluntarily and independently (Article 72, Section 3, Law No. 8,213/91).
- Unemployed individuals must demonstrate their status as insured at the time of the event, such as birth or adoption, according to Article 73 of Law No. 8.213/91.
- Special insured individuals from rural areas include those who work in the countryside, as artisans, and as indigenous fishers, and must provide evidence of their rural activities (Article 73, Section II, Law No. 8,213/91).
Additionally, the benefit is also provided in the event of adoption.
Do men have the right to receive maternity pay?
Men can benefit in two primary situations.
- When they are adoptive parents or have legal guardianship for adoption.
- When the child is cared for by the father after the death of the biological mother, as long as the father meets the INSS insurance requirements.
Some court rulings have acknowledged the entitlement to receive benefits in cases where the mother neglects the child or fails to fulfill her familial duties.
What is the importance of maternity aid?
The amount of salary-maternity benefit differs based on the insured category.
- Formal employees are entitled to receive the same amount as their final monthly salary according to Article 72 of Law No. 8,213/91.
- Domestic workers are entitled to receive payment based on the value equivalent to their most recent salary contribution.
- The amount is determined by adding up the last twelve contribution wages within a timeframe of less than 15 months for each individual contributor.
- Special insured individuals in rural areas are entitled to receive a payment equivalent to twelve monthly contributions or the minimum wage, as stated in Article 73, Section II of Law No. 8,213/91.
“Children” refers to a portion of a total value, such as twelve avos representing 1/12 of the total value when divided into 12 equal parts.
How much time does it endure?
The length of the salary-maternity period varies depending on the cause of the benefit.
- 120 days (4 months) are allotted for childbirth, adoption, or judicial custody cases (Articles 71 and 71-A, Law No 8,213/91).
- 14 days are allowed for non-criminal abortion, such as in situations involving rape or endangerment to the mother’s life (Article 93, §5 of Decree no 3.048/99).
Article 71 of Law No. 8.213/91 guarantees that maternity pay is entitled from 28 days before delivery until the actual delivery date.
Differences in maternity benefits between urban and rural areas
Maternity benefits for insured individuals in urban and rural areas adhere to similar principles, with variations in terms of documentation requirements and payment amounts.
- Urban residents must contribute to the INSS, whether they are formal employees, MEIs, or individual contributors, with the amount varying based on average income or employment status.
- Rural insurance does not necessitate a direct contribution, but the policyholder must demonstrate engagement in rural activities in the year leading up to the claim. The coverage amount is equal to the minimum wage.
This difference is significant for lawyers assisting rural communities or clients involved in the agricultural family economy.
Is your client prepared to request maternity pay?
Maternity pay is an essential entitlement that can significantly impact the lives of your clients.
Understanding the specifics of the benefit as a lawyer enables you to provide comprehensive and informative assistance.
Sources cited
The INSS states that it is not necessary to use intermediaries to verify salary consistency for maternity benefits.
Frequently Asked Questions
How to request maternity pay?
The order is placed through the My INSS website or app, but the procedure can differ based on the circumstances.
- Formal workers receive their payment automatically from the company.
- Further insured individuals are required to provide the INSS with essential documents like a birth certificate or court-issued guardianship papers.
- If the person requesting is working for MEI, they must also submit the request directly to INSS.
Can someone receive two maternity benefits for twins or multiple adoptions?
Can I request maternity pay if I am already receiving disability benefits?
The insured cannot combine both benefits; they must select the one that is most advantageous.
Explore our complete article on the aggregation of social perks for further information.
Can I get the benefit for each job I have?
Is it required to make up for the deficiency in order to receive maternity pay?
It relies on the specified period of absence determined by INSS.
- There is no need for a lack of qualifications for formal and household workers, they just need to be insured.
- Individual or optional contributors must have contributed for a minimum of 10 months.
Special insured individuals living in rural areas must demonstrate engagement in rural activities within the 12 months leading up to the incident.
Can unemployed individuals receive maternity benefits?
Employees who continue to meet the INSS insurance requirements are eligible for maternity pay.
The quality remains for 12 months after the final contribution and can be prolonged to 24 months based on the contribution record.
The insured also needs to demonstrate that the event (birth, adoption, or legal guardianship) took place during that timeframe.