Does force majeure leave require you to clock in?

No, it is not necessary to clock in beforehand, according to a recent ruling by the High Court of Justice of Castilla-La Mancha. The purpose of a force majeure leave is, precisely, to allow the worker to attend to the emergency as soon as possible, which is why the Court does not consider it necessary to clock in before attending to said emergency. As expert labor lawyers, we analyze this case so that you know what the leave consists of, whether or not it is paid, what a recent ruling from the TSJ of Castilla-La Mancha states, and how it differs from the five-day leave for hospitalization. 

What is paid leave for force majeure?

This is a leave regulated under Article 37.9 of the Workers' Statute, which establishes the following: 

9. The worker shall have the right to be absent from work due to force majeure when necessary for urgent family reasons related to relatives or cohabitants, in the event of illness or accident that makes their immediate presence indispensable.

Workers shall have the right to be paid for the hours of absence due to the causes provided for in this section, equivalent to four days per year, in accordance with the provisions of the collective bargaining agreement or, failing that, by agreement between the company and the legal representation of the workers, with the workers providing, where applicable, accreditation of the reason for the absence.

Therefore, paid force majeure leave allows a worker to be absent from their workplace when they must attend to family members or cohabitants due to an illness or accident. 

Requirements for paid force majeure leave

For this leave to be requested, several requirements must be met, which are the following: 

• There must be an urgent family reason arising from an unexpected, sudden situation. 
• It must involve a health issue or an accident that is serious and unpredictable. This requirement is important because it distinguishes this leave from others, as we will see in a later section. 
• The worker's presence in that situation is indispensable. The days of absence are limited to four per year and must be paid. The worker must provide proof of the reason for the absence. 

This regulation within the Workers' Statute (ET) aims to transpose the European Directive on work-life balance for parents and carers, in order to adapt working conditions and achieve real equality between men and women in labor relations through actions that target shared family responsibility. 

What is considered force majeure? 

Force majeure is defined as those events that, even if foreseeable, are unavoidable, insurmountable, and irresistible, provided that the cause driving them is independent of and foreign to the will of the obligated party. 

Is force majeure leave paid?

Yes, the worker continues to receive their salary, and it is even possible to take the leave by the hour, depending on the severity of the event. For example, a worker can take two hours of leave one day, six hours another day, and accumulate them until reaching the four working days. 

How is force majeure leave justified?

It can be justified in several ways, such as the following:

• A medical certificate from the health center or hospital confirming the illness or accident. 
• A justification note from the school if the emergency occurred while the minor was during school hours.
• A police report in the event of accidents, natural disasters, etc.

Do you have to clock in if you request the leave?

This is the aspect that has been analyzed by the High Court of Justice of Castilla-La Mancha. The case is as follows: the company Carreras Grupo Logístico required its workers, if they wanted to claim force majeure leave, to clock in at work, submit the request for leave while performing their duties, and clock out before being able to leave. 

The company argued that when the law speaks of "being absent," it presupposes a prior presence at the workplace; therefore, it understood that clocking in and out of work was a requirement to exercise the right to paid force majeure leave. 

The Court dismissed the company's allegations because it considers that, in other types of leave such as paternity leave, the law also speaks of "absence from work" and a prior physical presence is not required. 

The TSJ ruling considers that the leave can be requested even before the shift begins if the emergency occurs at that time and extends through the hours of that shift. 

The requirement that the court does demand is that the absence must be justified when the company requests it. 

The Supreme Court has analyzed similar cases and has established several rules: 

• The elements that must occur for the leave to apply are the following: an urgent and unexpected family reason, an illness or accident of a relative or cohabitant, and the need for the worker's immediate presence. 
• The remuneration regulated by law cannot be eliminated or conditioned by collective bargaining agreements, although they can regulate the method of calculating days or the justification process.
• If the absence is prolonged, other types of leave would apply, such as the 5-day leave for serious illness, hospitalization, or surgery requiring home rest, regulated in the Workers' Statute. 

What is the difference compared to the five-day leave for hospitalization or serious illness? 

It is a different type of leave based on the following elements: 

• The triggering event is an accident, serious illness, hospitalization, or surgical intervention without hospitalization that requires home rest. Meaning, in this case, the immediate presence of the worker is not mandatory. 
• The accident, illness, and hospitalization must affect the spouse or common-law partner, relatives up to the second degree of consanguinity or affinity, or a cohabitant.
• The leave lasts for five days, but there is no annual limit; rather, it can be granted again if a new triggering event arises. 
• While enjoying this leave, the worker continues to receive their full salary. 

Many doubts usually arise in these cases, making it necessary for an expert lawyer in employment law to analyze the specific scenario, the applicable regulations, and the rights held by the worker.