Last updated on: July 7th, 2023
The Labor Law in Spain is mainly regulated by the Workers Statute. The Code governs the terms and conditions of employment such as working hours, holidays, rest periods, wages, overtime, leave and termination of employment, etc. However, Collective Bargaining Agreements (CBAs) are another crucial source of labor relations. CBAs are negotiated at the sector/company level by the employer and employee representatives. These CBAs may grant better rights regarding specific working conditions (i.e. annual leave, holidays).
Hours & Pay Regulations
Employees are entitled to a minimum of 30 calendar days of annual leave paid at their regular rate, this can be increased by collective agreements or by individual employment contracts.
Leave entitlement is reduced proportionally for periods of employment less than a year. Unused leave does not generally carry forward to the next year, although there are exceptions to this rule (e.g., pregnancy or maternity leave). Payment in lieu of leave is not permitted except on termination of the employment contract.
When employees can take their annual leave entitlement is a matter of agreement between the employer and the employee. In case of disagreement between the parties, the dates will be decided by local labor authorities.
If an employee’s holiday period coincides with certain temporary disabilities including pregnancy, childbirth, or breastfeeding the employee is entitled to take a paid vacation at another time within the same year. If the temporary disability has another cause, the employees may take a paid vacation at another time within 18 months. Art 38, of the Workers’ Statute.
Employees are entitled to up to 365 i.e. 12 months’ sick leave. Subject to obtaining a doctor’s certificate, sick leave can be extended by up to a further 6 months. At the end of the 18-month sick leave period, the social security body determines whether:
- the employee is fit to return to work;
- the employee is suffering from a permanent disability or illness and therefore is unable or unfit to return to work, in which case their employment contract will end and the employee will be entitled to a state pension; or
- the employee does not suffer from a permanent disability or illness and is expected to recover, but remains unfit for work, in which case they may be entitled to a further extension of up to six months. The maximum potential period of sick leave is therefore 24 months.
Temporary incapacity – In cases of temporary incapacity, Social Security pays a portion of the employee’s salary in the form of an allowance, the amount of which is determined by the calculation basis for the previous month.
Pay– In order to qualify, the employee must have paid 180 days’ worth of social security contributions in the 5 years prior, with the exception of cases where the incapacity is caused by a work-related illness or accident that does not require a prior contribution period.
Sick pay for non-work-related injuries and illnesses
An employee is entitled to a percentage of their salary, the total amount of which is capped at €3,751.20 per month. The multiplier used to determine the amount of sick pay is known as the ‘average daily base’ as used to calculate the social security contributions that applied during the month before the sick leave:
- days one to three – there is no statutory requirement for either the employer or the state to pay the employee;
- days four to 20 – the employee is entitled to sick pay from the employer equal to 60% of their reference salary (capped). This amount cannot be recovered from the state, and
- from day 21 onwards – the employee is entitled to sick pay from the employer equal to 75% of their reference salary (capped). This amount can be recovered from the state.
After 18 months’ sick leave, the employer will no longer be obliged to pay sickness-related social security contributions for the employee.
Sick pay for work-related injuries and illness
For work-related injuries and illnesses, the employee is entitled to sick pay from the employer equal to 75% of their reference salary (capped) from day one onwards. This amount can be recovered from the Mutua Madrileña (a non-profit Spanish insurer). General Social Security Act, 2015, arts. 216.
Reduction or Flexibility of Working Hours – Employees may request a shortened working day when they need to care directly for a family member or relative up to the second degree of their spouse or civil partner, provided that there are no direct relatives up to the second degree. An employee has the right to a shortened working day is extended to workers who need to care for their son or daughter or persons in their care suffering from cancer or another serious illness up to 26 years of age, provided that before the age of 23, they prove a degree of disability equal to or exceeding 65%.
Furthermore, the right to flexible working hours applicable to workers who have people in their care is extended to workers who prove that they have a duty to care in respect of a son or daughter of more than 12 years of age, a spouse, or civil partner, relatives of the worker up to the second degree, as well as other dependent persons who live in the same abode and who cannot care for themselves.
Employees are entitled to a maximum of 16 weeks of maternity leave, comprising:
- 6 compulsory weeks, which must be taken by the mother following birth; and
- 10 flexible weeks, which can be used either before or after childbirth or can be transferred to the working father, whether or not he is married to the mother, subject to being registered with the State Social Security System.
This time off can be taken concurrently or successively. The 10 weeks cannot be transferred to the father if the mother’s return to work before the end of the leave would endanger her health. The 16 weeks’ leave can be extended in the following circumstances:
- in the case of multiple births, in which case 2 weeks’ additional leave per child is offered;
- where the child is born with a disability, in which case 2 weeks’ additional leave is offered;
- in the case of premature birth, in which case 13 weeks’ additional leave is offered; and
- in the case of the hospitalization of the child, in which case 13 weeks’ additional leave is offered.
The employment contract, applicable CBA or company policy can offer more generous entitlements. The mother is also entitled to time off to attend antenatal medical appointments and parenting and birth preparation classes, as well as time off post-birth for breastfeeding purposes.
Breastfeeding Break – During the 9 months following the birth, the employee is entitled to work 1 hour less per day without any reduction in the salary. The hour can be taken in two separate 30-minute breaks. Alternatively, the employee can elect to shorten the working day by 30 minutes or accumulate the time as paid working days (15 days approximately). This right is transferable to the working father.
These rights are gender-neutral and are applicable to same-sex couples, adoptions or family placements, and guardianships for the purpose of adoption or fostering.
Pay – Although all employed mothers are entitled to maternity leave, they will be entitled to social security benefits only if they satisfy the social security eligibility requirements. Once the mother meets these requirements, she is entitled to benefits equal to 100% of her average monthly salary, capped at €3,751.20 for the duration of her leave. If she does not satisfy the eligibility requirements, the mother will be entitled to a flat-rate benefit of €532.51 per month, equal to €17.75 per day, for up to 42 days. Royal Legislative Decree 2/2015 approving the consolidated text of the workers’ Statute, art. 48(4) (Spanish); Royal Legislative Decree 1/1995, art. 56.
Fathers of a newborn are entitled to 16 weeks of paid paternity leave. There is a mandatory period of 4 uninterrupted weeks of paternity leave immediately after childbirth for both mother and father. After that, the father can take the other 8 weeks continuously or uninterruptedly, by week, and on full, or partial time arrangement during the child’s first year. But if the birth, foster care, or adoption had occurred between April 1 and December 31, 2019, the permit would be only 8 weeks.
The first six weeks after birth, foster care or adoption will be mandatory. The remaining weeks are a right of the other parent other than the biological one and not an obligation, so they can be waived. If the biological mother dies, whether working or not, the second parent will have the right to enjoy the 16 weeks of leave that corresponded to the first parent.
The 16 weeks are 100% paid by the state and non-transferable, which means that if one parent decides not to take the time off, the other parent cannot take advantage of it. Art 48(7) of the Workers’ Statute.
Employees will be entitled to take parental leave to care for children or minors fostered for more than one year until the minor reaches 8 years of age. The leaves can be taken continuously or intermittently, on either a full-time or part-time basis, as per the stipulations outlined in the relevant regulations, until the child reaches the age of 8. These leaves are non-transferable and can only be utilized by the individual employee. It is the responsibility of the employee to specify the commencement and end dates of the leave and must notify the employer at least 10 days in advance, or as specified in the collective agreements, unless in cases of force majeure.
Note: Employers will have until August 2, 2024, to implement this new parental leave in their parental leave. Art 48 bis of the Workers’ Statute.
Parents who adopt or act as foster parents are entitled to up to 16 weeks of leave when:
- the child is aged under six, or
- the child is aged over six but suffers from a physical or mental disability.
The first six weeks after birth, foster care or adoption will be mandatory. The remaining ten weeks may be enjoyed in weekly periods, accumulated or interrupted, within the twelve months following the judicial resolution by which the adoption is constituted or the administrative decision of custody for the purposes of adoption or foster care.
The employee is entitled to two extra weeks per child in the event of multiple adoptions and fostering. If both parents work, they can share this leave, which can be taken either concurrently or successively. If taken concurrently, the total length of absence cannot exceed the maximum permitted.
In the event of disability of the son or daughter at birth, adoption, in custody for adoption or foster care, the employee will have an additional duration of two weeks, one for each of the parents. The same extension will proceed in the case of birth, adoption, custody for adoption, or multiple foster cares for each son or daughter other than the first.
Pay – If the employee satisfies the social security eligibility requirements, they will be entitled to social security benefits equal to 100% of their average monthly salary, capped at €3,751.20. If the employee does not satisfy the eligibility requirements, they will be entitled to a flat-rate benefit of €532.51 per month, equal to €17.75 per day, for up to 42 days. Art 46, of the Workers’ Statute.
Employees with at least one year of seniority are entitled to 20 hours per year of training leave, linked to the activity of the company. Art 46, of the Workers’ Statute.
Unpaid Leave – The new provisions establish new unpaid leave of up to 8 weeks for parents to care for a son or daughter, or child who has been fostered for a period exceeding one year, which may be enjoyed until the child reaches 8 years of age. This leave may be enjoyed continuously or divided into separate periods, in a flexible manner and may not be transferred to another person.
Paid Leave – Employees are entitled to paid leave for the following reasons –
- A duration of 15 calendar days in case of marriage of employees.
- 15 calendar days of paid leave in case of de facto partner (civil unions).
- Paid leave for time required to comply with a public obligation (e.g., voting or jury duties);
- A duration of 5 working days (compared to the 2 days available under former provisions) due to serious accident, illness, hospitalization, or outpatient surgery that requires recovery at home suffered by persons who live with the employee and civil partners, and relatives of the civil partner.
- A duration of 4 days of paid leave is also established for cases of force majeure, where the employee’s absence from work is necessary for urgent and unforeseen family reasons and where illness or accident makes the employee’s immediate presence crucial.
- 2 working days’ Leave in case of death of a spouse, unmarried civil partner, or relatives of either, up to the 2nd degree (up to 4 days if traveling is required)
- 1 day moving to a new residence, and
- The time necessary to execute union duties and worker representation.
Both parents have an individual right to take unpaid parental leave to care for a child for up to:
- 3 years following childbirth; or
- 3 years from the date on which the child is placed for adoption or permanent fostering.
If both parents work for the same employer, the employer may limit their ability to take parental leave at the same time in certain situations and where it is necessary for the business. If the parent returns to work within the first year of parental leave, they will be entitled to return to their former position. While employees are not entitled to compensation, the time during which unpaid leave is taken for child care must be considered by the employer in calculating seniority and the right to participate in training. If the parent returns to work within the second or third year of parental leave, they will be entitled to a role within the same professional group or equivalent category. Art 46, of the Workers’ Statute.
The Statute of Workers also guarantees employees unpaid leave of up to 2 years to take care of a close family member (parent, child, sibling, grandparent or grandchild, aunt or uncle, first cousin or niece or nephew) in the event the family member is handicapped or is deemed by the health authorities to be unable to execute the most basic activities of daily living without help from a third person. Art 46, of the Workers’ Statute.
Employees with at least one year of seniority in the company have the right to be recognized as having the possibility of taking a voluntary leave of absence for a period of no less than four months and no more than five years. This right may only be exercised again by the same worker if four years have elapsed since the end of the previous voluntary leave. Time taken for unpaid voluntary leave is not considered in the calculation of seniority. Art 46, of the Workers’ Statute.