Increase in leave entitlement for death of a family member from 2 to 10 days

Experiencing the death of your partner, child or relative is extremely difficult emotionally. We need time to recover, which is why the Workers' Statute is being reviewed in terms of the amount of leave granted for the death of a relative. In this article, we explain what the law currently stipulates, what changes are being proposed, and what stage the review is at.

What leave is available in the event of the death of a family member?

Currently, to answer this question, we must refer to Article 37.3 b bis of the Workers' Statute, which establishes the following:

"3. Workers may, with prior notice and justification, be absent from work with the right to remuneration for any of the following reasons and for the following periods of time:

b bis) Two days for the death of a spouse, common-law partner or relatives up to the second degree of consanguinity or affinity. When the worker needs to travel for this purpose, the period shall be extended by two days."

Therefore, the time that a worker may be absent from work in the event of the death of a family member is two days, and if travel is necessary, the leave may be extended by two more days.

What changes are being proposed to bereavement leave?

The Ministry of Labour has proposed the following changes to the regulations governing bereavement leave:

• An increase in leave from two to ten working days.
• The ten days may be taken over a period of four weeks from the date of death, either consecutively or separately, at the employee's discretion.
• A new type of leave is being proposed to accompany people undergoing euthanasia. The leave will be 15 days for the person caring for someone in palliative care, either in hospital or at home. These 15 days may be divided into two periods within a three-month period. In these cases, there will also be the right to reduce working hours.

The above is only an initial proposal that is being negotiated with representatives of companies and trade unions.

The reform will maintain the two working days in the case of relatives beyond the second degree of kinship, i.e. parents-in-law, brothers-in-law or sons-in-law.

Other types of leave that may be taken in the event of serious illness or hospitalisation of a family member

In addition to the leave we have seen, there is also the leave regulated in section b of article 37.3 of the Workers' Statute, which refers to cases of accident or serious illness, hospitalisation requiring home rest for the spouse, common-law partner or relatives up to the second degree by blood or affinity, including the common-law partner's blood relative, as well as any other person other than the above who lives with the worker in the same home and needs their care. In these cases, the leave will be for 5 days.

Can the company impose additional requirements for granting leave?

We have seen that, in order to grant leave for the hospitalisation of a family member, the law only establishes the need for a family relationship to exist and for the alleged fact regarding the hospitalisation to be justified. In other words, paid leave may be taken provided that these two conditions are met.

A case relating to this issue has been analysed by the National Court. In the case analysed, the company refused to grant leave despite the fact that the worker provided proof of extra-hospital care for second-degree relatives by blood, and asked the worker to prove that he was the carer of the relative in order to grant the leave.

The legal advisors of USO, CCOO, UGT and CGT sued the company, and the social chamber of the National Court ruled that the requirement for the worker to live with the person can only be imposed if they are not a spouse, common-law partner or relative up to the second degree.

Therefore, in the case analysed, no additional requirements could be imposed.

Leave regulated by the Workers' Statute for other cases

Leave is regulated in section 3 of article 37 of the Workers' Statute and is as follows:

• Fifteen calendar days in the event of marriage or registration of a civil partnership.
• One day for change of habitual residence.
• The time necessary to fulfil an unavoidable public and personal duty, including the exercise of active suffrage.
• To carry out trade union or staff representation functions.
• The time necessary to undergo prenatal examinations and childbirth preparation techniques, and in the case of adoption, guardianship for the purposes of adoption or foster care, to attend information and preparation sessions.
• Up to four days due to the impossibility of accessing the workplace or travelling on the roads necessary to get there, due to travel restrictions or prohibitions established by the competent authorities.
• For the time necessary to carry out preparatory acts for organ or tissue donation. One hour, which may be divided into two parts, for the care of an infant until it reaches nine months of age.
• One hour in the event of the premature birth of a child or the hospitalisation of the child after birth.

As we have seen, there are a number of types of leave that are adapted to different circumstances.

We will have to wait for the coming months to see how leave due to the death of a family member will ultimately be determined, depending on the negotiations between the Ministry of Labour, employers and trade unions.

If you need assistance from an labour lawyer due to a dispute with your company, please do not hesitate to contact us. Our team will review your case and advise you on your options, negotiate with your company if necessary, and take all the appropriate steps.