Parental leave in Spain and practical issues
In 2023, parental leave came into force, allowing workers to suspend their contracts for up to eight weeks to look after children under the age of eight.
Take a look at the controversy surrounding this leave.
Parental leave 8 weeks
What the law says about parental leave
Up to eight weeks
Childcare
Employees are entitled to parental leave to care for a child or foster child for more than one year.
This leave, the maximum duration of which is eight weeks, has the following special features :
- The period for exercising this right expires when the child reaches the age of eight.
- It can be taken full-time or part-time (although the regulation of part-time entitlement has not yet been developed in the regulations).
- It can be taken continuously or discontinuously (i.e. it does not have to be taken in consecutive weeks).
Intermittence
Since leave can be taken continuously or discontinuously, if an employee asks you for two weeks’ leave in 2024 and six weeks’ leave in 2025, your employer must grant it.
In fact, it could even choose to spread it over several weeks each summer so that the absence coincides with school holidays, and you would not be able to refuse.
Men and women
Individuality
This leave is an individual right of workers, and its exercise cannot be transferred.
To this end:
- It is up to the worker to specify the start and end date of the leave or, where applicable, the periods of leave.
Deadline for applying for paternity leave social security
- The company must be notified ten days in advance (or the advance notice stipulated in the collective agreement), except in cases of force majeure.
- If two or more workers generate this right for the same child, the company may postpone the granting of leave for a reasonable period, justifying this in writing (and always after having offered an equally flexible alternative).
Agreements may provide for other cases in which it is considered that taking parental leave in the requested period seriously disrupts the proper functioning of the company.
In such a case, the company may also postpone the granting of leave for a reasonable period.
For example, some company agreements have added as a case of refusal by the company the fact that two or more persons from the same department apply for leave in the same period.
After leave of absence or reduction
Remember that parental leave is not limited by reductions in working hours for legal guardianship or childcare or by parental leave.
Therefore, it may be taken in its entirety after having availed of the aforementioned rights.
Taking parental leave for childcare, breastfeeding leave or reduced working hours to care for a child does not restrict the period of parental leave, which may be taken in its entirety at the end of parental leave.
Unpaid parental leave
What the law on parental leave doesn’t say
Parental leave is a suspension
All of the above is the existing regulation on parental leave; note that nothing is specified as to whether the leave is paid leave.
However, in this respect:
- This leave has been regulated as a new cause for suspension of the contract, like strike action or suspension of employment and pay for disciplinary reasons. Therefore, the suspension exempts from the reciprocal obligations to work and pay for work.
- Social security itself (as will be seen below) expressly recognises parental leave as unpaid leave.
- In short, it follows that parental leave is an unpaid parental leave of 8 weeks, so that the employer does not have to pay wages while the worker is exercising this right.
Social security contributions
According to the TGSS
The law also does not indicate whether or not the company must pay contributions during parental leave.
For these purposes, there are cases of contractual suspension in which contributions must continue to be paid (such as a TI) and cases in which they do not (such as an enforced leave of absence).
However, the General Treasury of the Social Security (TGSS) considers that the company must pay contributions:
- According to the TGSS,parental leave is unpaid leave. Therefore, the rule that obliges companies to pay contributions for unpaid leave during which the worker remains registered with the Social Security, as happens, for example, with unpaid leave (an unpaid absence from work because it is not provided for in the agreement, but is justified by the worker), applies to it.
- In these cases, the contribution base applicable for common contingencies is the minimum base corresponding at any given time to the worker’s professional category group. For occupational contingencies, the contribution base will be the minimum ceiling.
RED system
The company does not have to process the worker’s sick leave with the Social Security during parental leave, but it does have to report this reason for inactivity through the RED System (code 20 must be entered in the “Type of inactivity” field).
8 weeks parental leave application form
Fdo.: EL/LA TRABAJADOR/A “nombre y apellidos trabajador/a” “firma” | Fdo.: LA EMPRESA “sello y firma” |
8 weeks paid parental leave 2024
The government of Pedro Sánchez has promised to pay for four weeks of parental leave, but as of the date of publication of this article, the law is still awaiting the development of regulations.
