Court clarifies position on new 5-day family care leave

The National Court has determined that the newly agreed five days of leave available to workers to care for a family member who has suffered an illness, accident or hospitalisation, approved in Royal Decree Law 5/2023, must be considered working days and not natural days.

The ruling clarifies for the first time how the days of this new leave should be computed, as well as the authorisation for the death of a family member, of two days, which should also be understood as business days, because on non-working holidays it would not be necessary to request them since they do not work.

“This ruling is above all the jurisprudence that existed until now. It is not the leave for hospitalisation that we already had. In reality, it is a permit for caregivers,” explains María Eugenia Moreno, a lawyer who obtained the ruling.

Furthermore, she points out, the purpose of this ruling is to achieve equality between men and women: “Until now, it had a feminine connotation because it was the woman who mostly requested all the leave. This resolution aims to invite men to also be able to carry out their care work, both for children and family members, and to have co-responsibility.”

This ruling partially upholds a union lawsuit against the contact-centre collective agreement, which stipulated these days as calendar days. For the lawyer, this ruling establishes jurisprudence and, therefore, must be respected in all companies, regardless of their sector and what appears in their collective agreement.

This ruling is contrary to the norm for sickness, therefore, which applies to natural days, rather than business days.

Moreno explains that the calculation of the permits contemplated in that agreement as calendar days was contrary to what was established in Directive 2019/1158 and article 37 of the Workers’ Statute.

This permission, the lawyer clarifies, already existed before the approval of this RDL in the Family Law, which was left in the pipeline due to the electoral advance. “The legislative change had left the interpretation of whether the days were working or natural days without jurisprudence,” says Moreno.

This authorisation can be requested by the spouse or partner, relatives up to the second degree of consanguinity and even by any person who lives with the worker in the same home and who requires their care.

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