New employment leave entitlements to care for family members and cohabitants.

The Families Law (Ley de Familias) is new legislation promoted by the Government to improve work-life balance for workers in Spain. Its aim is to recognize the diversity of family situations and to address the barriers to work-life balance and child-rearing that families face.

This Royal Decree-Law adopts urgent measures to complete the transposition of Directive (EU) 2019/1158 on work-life balance for parents and carers.

Breastfeeding leave (permiso de lactancia)

Until now, the right to be absent from work was subject to the provisions of collective bargaining or to an agreement between the company and the worker. Now, following the amendment introduced by the aforementioned Royal Decree-Law 7/2023, the leave provided for in Article 37.4 of the Workers’ Statute (Estatuto de los Trabajadores) aims to:

– Remove the restrictions.
– Turn all the ways of taking the leave, including the accumulation of the paid hours of absence, into a right of all workers.

In cases of birth, adoption, guardianship with a view to adoption, or foster care, workers will be entitled to one hour of absence from work. This absence may be divided into two parts for the care of the infant until the infant reaches 9 months of age.

The duration of the leave will increase proportionally in cases of multiple births, adoptions, guardianships with a view to adoption, or foster placements.

The person exercising this right may, at their own choice, replace it with a half-hour reduction in their working day for the same purpose or accumulate it into full working days.

The right cannot be transferred to another person. However, if two workers at the same company request the right in respect of the same child, its simultaneous exercise may be limited for well-founded and objective reasons relating to the company’s operations, duly justified in writing.

In that case, however, the company will be required to offer an alternative plan that ensures both workers can take the leave and that enables the exercise of work-life balance rights. Where both parents, adopters, guardians, or foster parents exercise this right for the same duration and under the same arrangement, the leave period may be extended until the infant reaches 12 months of age, with a proportional reduction in salary from the time the infant reaches 9 months.

In addition to these new features, Royal Decree-Law 7/2023 refers to the new parental leave, stating that it is conceived as leave to care for sons and daughters that is distinct from birth-related leave.

This leave is an exclusive and non-transferable entitlement of each parent. It may be taken as the worker chooses and according to their needs, during a period that extends beyond the birth.

8-week leave to care for sons and daughters

Workers are entitled to parental leave to care for a son, a daughter, or a child fostered for more than one year, until the child reaches eight years of age. This leave, which lasts no more than eight weeks, continuous or discontinuous, is non-transferable and may be taken flexibly. For the time being, it is unpaid.

Where the needs of the service so permit, it is for the worker to specify the start and end dates of the leave or, where applicable, of the leave periods, and the worker must notify the company 10 days in advance or with the notice set by the collective bargaining agreements.

5-day paid leave to care for second-degree relatives or cohabitants

The worker may be absent from work with pay for 5 days in the event of an accident or serious illness, hospitalization, or surgery without hospitalization requiring rest at home of their:

– Spouse.
– De facto partner (pareja de hecho).
– Relatives up to the second degree by blood or marriage.
– Blood relatives of the de facto partner.
– Any person who lives with the worker in the same home and needs care.

Workers who take this leave do continue to receive their salary. The worker may also take:

– 15 calendar days in the event of marriage or registration as de facto partners.

– 2 days for the death of a spouse, de facto partner, or relatives up to the second degree by blood or marriage. Where the worker needs to travel for this reason, the period will be extended by two days.

Paid leave of up to 4 days for unforeseeable family emergencies.

Workers are entitled to be absent from work on grounds of force majeure when this is necessary for urgent and unforeseeable family reasons relating to family members or cohabitants, in the event of an illness or accident that makes their immediate presence essential. This leave may be taken by the hour or by the day, up to a total of 4 days per year.

While the employee is on this leave, the company is required to pay the normal salary for the time absent.

In the case of leave for the death of a spouse, which amounts to 2 days, de facto partners are taken into account.

Reduced working hours and requests for remote work

Workers are entitled to request adjustments to the duration and distribution of their working hours, to the organization of their working time, and to the way in which they perform their work, including remote work, in order to give effect to their right to reconcile family and working life.

Where they have sons or daughters, workers are entitled to make such a request until the children reach twelve years of age. In addition, a reduction of working hours is a right for those who need to care for a child under 12 or a person with a disability who does not carry out a paid activity. In this case, there will be a reduction in salary.

A reduction of working hours may also be requested by those who need to care for a spouse or de facto partner, or for a relative up to the second degree by blood. This includes a blood relative of the de facto partner who, for reasons of age, accident, or illness, cannot look after themselves and does not carry out a paid activity.

Furthermore, the right to a reduction of working hours is extended to the care of children or dependents with a disability who are under 26 and have a serious illness. This right applies where the degree of disability exceeds 65%, provided that this condition was certified before they reached 23 years of age.

Leave of absence (excedencia)

Workers are entitled to a leave of absence of no more than three years to care for each child, whether biological or adopted, or in cases of guardianship with a view to adoption or permanent foster care. This period starts to run from the date of birth or, where applicable, from the date of the judicial or administrative decision.

Workers who need to care for a spouse or de facto partner, or for a relative up to the second degree by blood and by marriage, are also entitled to a leave of absence of no more than two years. This includes a blood relative of the de facto partner who, for reasons of age, accident, illness, or disability, cannot look after themselves and does not carry out a paid activity.

The period during which the worker is on leave of absence counts toward seniority. In addition, the worker is entitled to attend vocational training courses, which the company must invite them to attend, particularly on the occasion of their return to work.

During the first year, the worker will be entitled to have their job held for them. After that period, the reservation will refer to a job in the same professional group or an equivalent category.

If the worker belongs to a family officially recognized as a large family (familia numerosa), the job reservation will be extended up to a maximum of:

– 15 months in the case of a general-category large family.
– 18 months in the case of the special category.

Companies cannot dismiss workers who take the leave.

Employees who take leave to care for their family members cannot be dismissed by their companies. And, of course, no dismissal may take place where there is any discriminatory ground.

In the event of dismissal, it would be considered null and void (nulo). This will be the case provided that there are no grounds for it to be declared fair (procedente).