Leave of absence to care for children or family members

Workers in Spain, according to the current article 46.3 of the Workers' Statute, have the right to request and enjoy certain leaves of absence from their jobs to care for their children and dependent family members, provided that this is not a paid activity and they have at least a second degree of affinity or consanguinity. Here we would like to take a closer look at the matter and tell you everything you need to know about it.

General aspects of leave of absence to care for children and family members

If necessary, the employee has the right to request this type of leave from the company in which he/she is employed. Furthermore, the company, provided that the employee meets the requirements established by law, cannot refuse to grant this leave. It does not matter what type of contract you have with the company or how long you have been with the company. However, the collective agreement may require you to give notice.

There is only one limitation for the application for this type of leave, but it is very occasional. Specifically, it refers to the situation in which two workers in the same company request leave to care for the same family member. In such cases, the employer has the right to limit its exercise.

Requirements

All employees may apply for leave of absence to care for family members or children in need at any time. However, no more than three years may have elapsed since the birth of the child. Furthermore, once the child reaches the age of three, the leave of absence is terminated. On the other hand, if the child's situation so requires, during this time it is possible to request leave in separate periods and alternate it between the two parents.

If the leave of absence is requested to care for a relative up to the second degree of affinity or consanguinity, the requirements change. In this regard, it must be justified that, for reasons of age, illness, disability or accident, the subject is unable to look after him/herself. In addition, he/she must not be gainfully employed. In no case may such leave exceed two years, unless the collective bargaining agreement to which the worker is subject states otherwise.

The procedure for applying for leave of absence

The most common procedure is to give the company at least 15 days' notice that you are going to take leave to care for a family member or child. In this sense, the employee can specify that he/she will take the leave during the maximum period or, failing that, during a shorter period, in which case he/she can request extensions until the maximum period is reached.

Despite being an employee's right, the company's approval is necessary, although it is true that the company cannot refuse the leave if the requirements established in the Workers' Statute are met. In fact, if it does not do so, the employee may sue the company and obtain compensation for damages.

The request for leave of absence can be made at any time, i.e. it does not matter whether the employee is working or on temporary disability leave, holidays, paternity leave, maternity leave or breastfeeding leave.

Reinstatement and job reservation

This is undoubtedly one of the issues that most concerns workers when they apply for leave of absence to care for children or any other family member.

In this regard, current legislation specifies that the worker has the right to reserve his or her job during the first year of leave. This is the case unless they have official recognition as a large family, in which case the period is extended to 15 months, or as a special large family, which would be up to 18 months. In any case, once the corresponding period has elapsed, you will only retain the right to reserve a post belonging to the same group or equivalent professional category within the company.

Moreover, unlike in the case of unpaid leave, the right to return to the job is neither potential nor expectant, but exercisable. Therefore, if the employer refuses to reinstate the employee at the end of the leave period, the employer's reaction will amount to unfair dismissal. The only requirement that the employee has to fulfil is to give the employer prior notice of his return to work, in accordance with the collective agreement.

In this sense, the employer can only dismiss the employee while he/she is on leave for objective reasons. If this does not happen, the dismissal will be considered null and void and, in addition, the employer will have to reinstate the employee in the workforce and pay the corresponding processing wages.

Other aspects to take into account

The time spent on leave of absence to care for children or family members will count towards seniority within the company. In addition, they will have the right to attend and complete any training course for which they are called by the employer.

Although the employer is not obliged to pay the employee's social security contributions during the period of leave for this reason, Article 237 of the General Law on Social Security indicates that the worker will be considered to have paid 100% contributions for the purposes of paternity, maternity, death and survival, retirement and permanent disability, provided that the leave is requested for the care of a child under 3 years of age. In the event that it is requested for the care of a relative, only the first year will be taken into account. In neither case is this contribution taken into account for unemployment benefit.

Is it possible to work or collect unemployment benefits during the period of parental leave?

These are other rather controversial questions. First of all, the current legislation is silent on whether the worker can take up another job while on parental leave. For this reason, one has to look to case law to decipher the issue. The case law states that, as long as the new job is compatible with the reason for which the employee requested the leave, yes.

However, in order to determine this right to have another job, the working conditions of the position would have to be analysed in detail to determine whether they are compatible with the care of the child or family member.

On the other hand, with regard to the receipt of unemployment benefit during the period of leave to care for children or family members, current legislation is quite categorical. It specifies that the worker is not entitled to receive this benefit. That is, except in the event that he/she finds a job that is compatible with this leave and works in it for long enough to be entitled to receive it.

In this case, you would have to hold that job for one year full time in order to receive four months of unemployment benefit. This is very complicated and unusual given the characteristics of this type of leave, the dedication required to care for children or family members and its short duration.

We hope we have helped you to better understand the details of leave of absence to care for children and family members.

If you would like more information, please contact us for a consultation.