Spain: Options for paid leave and 'à la carte' working hours are broadened and other employment measures relating to work-life balance are approved

Royal Decree-Law 5/2023, of June 28, 2023, adopting and extending certain measures in response to the economic and social consequences of the war in Ukraine, to support reconstruction of the Island of La Palma and other vulnerable situations; transposing EU Directives on structural modifications to commercial companies and on work-life balance for parents and carers; and implementing and complying with EU law, has been published and establishes a number of employment-related measures, including most notably the following:

1. Right not to be discriminated against for exercising work-life balance rights

Article 4.2 of the Workers’ Statute (“WS”) now expressly includes a worker’s right not to be discriminated against on the basis of sex, including unfavorable treatment given to women and men for exercising rights relating to work-life balance or shared responsibility for work and family life.

2. Parental leave

A new article 48 bis of the WS is introduced, establishing that workers will be entitled to take parental leave to care for children or minors fostered for more than one year, until the minor reaches the age of eight.

This leave, which is not to exceed eight weeks, whether continuous or with breaks, may be taken on a full- or part-time basis in accordance with what the regulations stipulate.

3. Changes regarding adaptations to working hours (à la carte working hours)

The new legislation broadens the right to request adaptations of working hours to workers (article 34.8 of the WS) who need to take care for children over the age of twelve, spouses or civil partners, family members up to the second degree of consanguinity, as well as other dependents when, in this last-mentioned case, they live in the same house and, for reasons of age, accident or disease they are unable to take care of themselves. The circumstances forming the basis for the request must be evidenced.

The legislation stipulates that (i) in the collective bargaining process the terms of its exercise may be regulated and will comply with standards and systems that ensure that there is no discrimination, either direct or indirect, between workers of either sex and (ii) failing that, if a worker submits a request, the employer will begin a negotiation process to be conducted as swiftly as possible and, in any event, for a maximum period of fifteen days. If the employer does not expressly state its objections within this period, the request will be deemed granted.

According to the legislation, once the negotiation process concludes, the employer will either (i) give written notice of acceptance of the request, (ii) propose an alternative that also meets the work-life balance needs of the employee, or (iii) deny the request in writing. Where the employer proposes an alternative or denies the request, it must state the objective reasons on which the decision was based.

The worker will be entitled to return to the pre-adaptation situation once the agreed or stipulated period concludes or when the reasons given for the request end. In all other cases, if there is a change in circumstances that justifies it, the employer can only deny the return requested where there is an objective and reasoned basis for doing so.

Any adaptations to working hours that were being applied when the new legislation entered into force will remain in force. The new wording of article 34.8 of the WS and, in particular, the provisions regarding the return to the previous situation will apply.

4. Paid leave

The following leave-related changes are introduced in article 37 of the WS:

• Leave equal to 15 calendar days may be taken upon registration of a de facto partner.
• Paid leave equal to five days may be taken for serious accidents or diseases, hospitalization or surgery without hospitalization requiring home rest for spouses, de facto partners or family members up to the second degree of consanguinity or affinity, including the blood-related family members of de facto partners, as well as any person other than the foregoing, who lives with the worker in the same house and effectively requires care from the worker.
• Paid leave of two days for the death of spouses, or family members up to the second degree of consanguinity or affinity is extended to 'de facto' partners. If for this reason, the employee needs to travel, the leave will be extended by another two days.
                   
  Employees will be entitled to take time off from work for force majeure events where necessary for urgent family reasons related to family members or cohabitating persons, in the event of a disease or accident that requires their immediate presence. Employees will be entitled to be paid for any hours of absence for the indicated reasons up to the equivalent of four days per year, in accordance with the collective labor agreement or, failing that, the agreement between the company and the workers' statutory representatives and, where applicable, employees must substantiate the reason for the absence.

5. New cases of reduced working hours and leave to care for family members

Reduced working hours and leave to take care for family members are available to employees who need to take charge of the direct care of a spouse or de facto partner, or a family member up to the second degree of consanguinity and affinity, now including a blood-related family member of a de facto partner, who for reasons of age, accident or disease cannot take care of him- or herself, and who does not engage in paid work.

The exercise of this right shall take into account the promotion of co-responsibility between women and men and also avoid the perpetuation of gender roles and stereotypes.

6. When the two parents who are taking breastfeeding leave, reduced working hours or leave to take care for children happen to work at the same company

The simultaneous exercise of these rights may be limited for justified and objective reasons concerning the operation of the company. The employer must state the reasons in writing and offer an alternative plan that ensures that both employees are able to take such leave and exercise their work-life balance rights.

7. Transitional regime for leave

The leave provided for in articles 37.4, 37.6 and 46.3 of the Workers’ Statute that was being taken when the new legislation entered into force will continue to be governed by the law applicable to the leave when the employee began to take it. The exercise of these rights will in no way limit the parental leave provided for in article 48 bis of the WS, which may be taken in full when the leave covered by said rights ends.

8. New grounds for declaring dismissals null and void

The following are introduced as grounds for declaring a dismissal null and void: (i) taking parental leave, (ii) requesting the leave provided for in article 37.3.b) of the WS (due to a serious accident or disease, hospitalization or surgery without hospitalization requiring home rest for spouses, de facto partners or family members up to the second degree of consanguinity or affinity, including the blood-related family members of de facto partners, as well as any person other than the foregoing, who lives with the worker in the same house and effectively requires care from the worker) and (iii) those cases where the worker has requested or is applying an adaptation to working hours under article 34.8 of the WS.

9. Extension of employment measures related to beneficiaries of public support

Lastly, the new legislation establishes that at companies which are beneficiaries of the direct support payments granted in Royal Decree-Law 5/2023, rising energy costs cannot be used as an objective ground for laying off employees until December 31, 2023. Failure to comply with the above will require the support received to be refunded.

Furthermore, any companies which elect reduced working hours or suspension of contracts measures under article 47 of the WS on grounds relating to the invasion of Ukraine and which also benefit from government support cannot use these grounds either for laying off employees.

10. Date of entry into force of inclusion in the social security system of students on work experience or external academic placements, which are part of training programs

The entry into force of this provision will be January 1, 2024 (rather than October 1, 2023).