The Spanish government passed legislation transposing the European Union (EU) Directive 2019/1158 on work-life balance for parents and carers into local law. Royal Decree Law 5/2023 entered into effect on 30 June 2023 and introduces, among other provisions, unpaid parental care leave, paid force majeure leave, and extensions to current carers’ leave provisions and other existing leaves.
Background
The EU Directive on work-life balance for parents and carers, which entered into effect on 1 August 2019, focuses on promoting equality between men and women and on addressing the underrepresentation of women in the labor market by establishing rights to paternity, parental, and caregivers’ leave. EU member states were given a three-year deadline to enact local legislation complying with the directive by August 2022. While some countries, such as the Netherlands, Italy, and Austria, transposed the Directive within the designated timeframe, other jurisdictions, such as Belgium and Spain, have missed the deadline.
Key details
The most significant changes introduced by the new legislation include the following:
Paid leaves
Force majeure leave
Employees are now entitled to the equivalent of four days of paid leave in the case of urgent and unforeseen family issues, as well as situations where the employee’s immediate presence is required to care for family members or cohabitants. The equivalent of four days may be as per a standard workday definition, but the definition of a workday under a collective agreement or a company agreement will supersede any other definition. This is important because this leave may be taken in hourly increments and employees will be entitled to their full entitlement as relates to their personal circumstances.
Carers’ leave
Employees are now entitled to five days of paid carers’ leave, increased from two days. The leave may be used where the employee needs to care for eligible individuals in the case of a serious accident, illness, outpatient surgery, or hospitalization. This legislation has also added to the people for whom the employee is eligible to take this leave:
Civil partner (a form of domestic partnership)
Civil partner’s family members (including parent, child, sibling, grandparent, or grandchild)
Cohabitants
Marriage leave
The existing 15 calendar days of paid marriage leave is now extended to civil partnerships.
Bereavement leave
The definition of spouse for paid bereavement leave has been extended to include civil partners.
Sick leave
Employees are now entitled to use their sick leave entitlement in the event of a serious illness, accident, or hospitalization of their civil partner.
Single parents
Paternity and maternity leave fall under the scope of childcare leave. Each parent is eligible for 16 weeks of childcare leave which may be extended by two additional weeks (one for each parent) in the case of a child born with a disability or in the event of multiple births or adoptions. Under this legislation, a single parent is eligible for the full additional entitlement.
Unpaid Parental leave
The legislation introduces an unpaid eight-week parental leave to care for a biological child, or for a minor child fostered for longer than one year, until the child reaches age eight. This leave is nontransferable and may be taken in a continuous block of time or in increments, on a full- or part-time basis. Employees must give a 10-day notice to their employer when they plan to take leave, except in the event of an emergency, or if the applicable collective bargaining agreement provides otherwise. Employers may require an employee to postpone a requested leave where it interferes with the company’s economic operation but must justify this in writing and after having offered the employee a flexible alternative to the postponement of the leave.
The extended parental leave is expected to become a paid-leave from 2 August 2024; however, legislation regarding this provision has not been released.
Working hours
In addition to their right to request flexible working arrangements, employees are now entitled to request reduced work hours under the following circumstances:
To care for a relative, including spouse, civil partner, parent, child, sibling, grandparent, or grandchild
To care for their spouse or a civil partner's relative, including parent, child, sibling, grandparent, or grandchild
To care for child or a person in their care who is suffering from cancer or another serious illness. To qualify for a flexible working schedule, the sick person in the employee’s care must be aged 26 or younger and must have a degree of disability exceeding 65% that has been proven prior to age 23.
The right to request flexible work hours has increased in scope and may now apply to any employee who can prove that they have a caring duty for a child aged 12 years and above, a spouse or civil partner, dependent cohabitants, and relatives up to the second degree of consanguinity.
Unless otherwise stipulated in a collective agreement, the employer has 15 days (previously 30) to respond to a request, and, where the employer does not respond, the request will be considered granted.
Employers may refuse such requests; however, refusals must be justified in writing and another alternative must have been offered.
Previously, flexible working arrangements ended only upon request, now they can also cease at the end of the agreed-upon flexible period or when the reasons justifying the flexibility end. Employers may only deny a return to the prior regular schedule request when duly and objectively justified in writing.
Next steps
Employers should review the changes and ensure compliance by amending their HR internal policies and practices, employment agreements, company-level collective bargaining agreements, and family-related benefits and policies as needed.
This legislation includes a specific right not to be discriminated against on the basis of sex. This includes unfavorable treatment towards either sex for exercising rights relating to work-life balance and dismissal protections. Employers should be aware that dismissals without cause of employees who decide to use their new work-life balance rights under this legislation will almost certainly not be upheld.