Paid leave, what it is and how to request it

Paid leave in the Workers' Statute is regulated in Article 37. However, as is always the case, this legal text shows the minimum applicable, but collective bargaining agreements may provide for higher entitlements. Here we want to analyze in depth what they are and what types exist.

What is paid leave?

Paid leave, based on the provisions of the Workers' Statute, are working days during which an employee may be absent from work without having part of his or her salary deducted or having to make up the hours later. In order to do so, it is essential that he/she provides a justified cause.

Different types of paid leave

Specifically, Article 37 of the Workers' Statute establishes six types of paid leave:

• Marriage. If the employee decides to get married, he/she will enjoy 15 days of paid leave from the date on which he/she gets married.
• Death, accident or serious illness, as well as surgical interventions without hospitalization, but requiring home rest. In this case, provided that it is a family member up to the second degree of affinity or consanguinity, the employee will have two days. If he/she has to travel outside the locality, the figure will be increased to four.
• Moving. One day for moving from the usual place of residence.
• Active suffrage. Since it is considered an inexcusable duty of a public and personal nature. We are talking, of course, about going to vote in an election.
• Union or staff representation functions.
• Prenatal examinations and childbirth preparation techniques. In this case, the Workers' Statute speaks of "indispensable time". In the case of adoption, this legal text provides for the same paid leave for information sessions and preparation for foster care, as well as to carry out previous psychological and social reports.

It is worth remembering that, since the extension of maternity and paternity leave in 2019, paid leave for childbirth ceased to exist in our legislation. Nor can we forget that, according to the Supreme Court, accompanying a minor child to the doctor does not receive this consideration unless the collective agreement specifies otherwise.

Does paid leave count as an effective working day?

It depends on the case. All the above-mentioned types, since they are those included in the Workers' Statute, are considered as effective working time. Therefore, the employee does not have to recover the hours not worked that correspond to their enjoyment.

The same does not apply to own business days. This concept is synonymous with paid leave in that the company will not deduct part of the salary if the employee decides to take one or more of them. However, the Supreme Court states that they cannot be considered effective working time, since the employee is the one who decides what he/she will use the time for.

In other words, while a series of circumstances must be met in order to take the paid leave specified in the Workers' Statute, there is no need to take paid leave for personal matters. In any case, collective bargaining agreements may provide otherwise.

Other questions of interest regarding paid leave

Is there any type of paid leave compelled by the company? By definition, the enjoyment of paid leave cannot be compelled by the employer, as it depends on personal matters exclusive to the employee. However, there have been exceptions. The most obvious of all is the "mandatory recoverable paid leave" that took place between March 30 and April 9, 2020 in the framework of the State of Emergency called on the occasion of the COVID-19 health crisis.

For its part, except in the case of marriage, the Workers' Statute does not speak of calendar or working days. It should also be noted that the salary to be received must be the same as if the employee went to work, i.e. the sum of the basic salary and the corresponding allowances.

But how is paid leave requested? The legislation only states that the employee is obliged to inform the company that he/she is going to take this type of leave as far in advance as possible and that, subsequently, he/she must justify it. Let us not forget that there are situations that are impossible to foresee, such as an accident or a supervening illness. Others are, as in the case of a scheduled surgical operation.

Therefore, although the employee cannot unilaterally take paid leave, the company cannot refuse to grant it. If it did so, it could request the payment of damages for the situation generated.

In short, we hope we have clarified all your doubts about paid leave. But, if not, do not hesitate to contact us.