Leave of absence from work, types, requirements and how to apply for it

There are times when, to care for a child or other family member or for any other reason, an employee wishes to temporarily interrupt the employment relationship with the company that hired him or her. To this end, the law contemplates the figure of leave of absence.

But what is leave of absence from work and what types are there? We will answer these questions in this article. But they are not the only ones. We will also talk about how they work, how they can be requested and how many times this right can be exercised.

What is a leave of absence from work?

As we have already mentioned, a leave of absence from work is a right that employees have, which gives them the possibility of temporarily suspending the contract that links them to their company. The difference with voluntary leave or resignation is that it does not entail the loss of the job. However, the employee does not receive his or her salary for the duration of his or her contract.

What types of leave of absence from work are there?

In total, the Workers' Statute determines that workers have the right to apply for five different types of leave. Let's take a look at them.

Voluntary leave of absence

This is the suspension of the employment contract by unilateral decision of the worker. In this case, they do not receive their salary and do not pay Social Security contributions. It can last between four months and five years.

In order to apply for voluntary leave, the worker must have been working in the company for at least one year. In addition, they may not have requested a leave of absence of any kind in the last four years.

Once the employee wishes to return to work, he/she must give one month's notice to the company. The company will reinstate him/her when a position similar to his/her previous one becomes available, with no time limit for reinstatement.

Agreed leave

This is a type of voluntary leave of absence in which the worker and the company agree on the conditions. Therefore, both reach an agreement on the conditions under which it will materialise.

Enforced leave of absence

In this case, the worker applies for leave of absence in order to take up a public post (for example, a post as a councillor in the town council of the municipality in which he/she resides). Unlike the previous one, it does not have a fixed maximum duration and, furthermore, it guarantees the recovery of the post once it ends.

The only requirement is to give one month's notice to the employer. The period of leave will count as seniority.

Leave of absence for childcare

This is a type of voluntary leave of absence, but with its own characteristics that provide more security for the worker. It lasts for a maximum of three years for each child and can be requested at any time after the birth of the child.

The return to the same job is only guaranteed for the first 12 months (15 months in the case of general large families and 18 months in the case of special large families). If this period is exceeded, the return to the same job is also guaranteed, but without the company being obliged to give the same job.

This type of leave also counts in terms of seniority in the company. In addition, during the period of leave, the worker is entitled to attend vocational training courses.

Leave of absence to care for family members

The fifth and last type. The purpose of leave to care for family members up to the second degree of kinship by blood (own) or affinity (those of the spouse) is so that the worker can adequately care for dependents in their environment who do not carry out a paid activity.

The maximum period of leave for caring for family members is two years, although collective agreements may establish a longer period. The employee is entitled to have his or her job reserved by the company for the first 12 months, as in the previous case. After this period, he/she is only entitled to return to a post in the same professional group or category.

How to take leave from work?

Employees are obliged to give their employer at least one month's notice of their wish to take leave from work. This request must be made in writing and include the following information:

• Personal information about the employee and the company.
• Date on which the contract began and the length of service.
• Date of commencement of the leave of absence.
• Date of return to the post (only if known in advance).
• Occupational category and tasks undertaken within the company.
• Possible collective agreement rules affecting the application for and taking of leave.

Companies are obliged to accept the request for leave, unless you consider that any of your rights are violated. If so, you could take the case to court. Until the judge decides the case, the employee would have to continue working and would not be on leave.

Moreover, even if the employee has set out the date of his or her return to work in the request for leave, he or she is obliged to give the company one month's notice. In this sense, the company could refuse to reinstate the employee before that date.

When is it possible to request leave from work?

As mentioned above, the employee may request leave from work as long as he/she has at least one year's seniority and has not requested another leave of absence in the previous four years.

But how many leaves of absence can be requested? The truth is that there is no specific number. Employees can request and take as much leave from work as they wish as long as they meet the above-mentioned requirements.

Is the company obliged to reinstate an employee?

This is one of the questions that most concerns those who are thinking of applying for a leave of absence from work. In this regard, it should be noted that the Workers' Statute clearly specifies that companies are obliged to reinstate the employee once the period of leave is over.

However, job reservation is only guaranteed in the case of forced and parental leave. In the latter case, however, it is limited in time. If this threshold is exceeded or we are talking about voluntary leave, we would have to talk about the so-called right of first refusal.

This means that if, when the employee applies for reinstatement, his or her position is not available, he or she will be reassigned to a different one. That is, as long as there is a vacancy. If there is no vacancy due to organisational reasons, he or she will have to wait for the company to notify him or her of its availability, which the company is obliged to do.

That post must be in the same or an equivalent category to the one held by the employee before applying for leave. The employee will therefore return to his or her previous contract with the same salary conditions and retaining his or her seniority.

At this point, you know how leave of absence works depending on the type of leave. This is certainly very useful information to determine whether or not you really want to apply for leave. If you still have any unresolved questions, please contact one of our employment lawyers and we will be happy to help you.