Comment

I. The framework for reference letter.

For the purposes at hand, following the essay for in article .3 of Royal Decree-Law 5/2023 of June 28 (which, among other matters, partially transposes Directive (EU) 2019/1158 of the European Parliament and of committee of June 20, 2019, on the work-life balance of parents and caregivers), article .9 of the Workers’ Statute expressly provides as follows:

"9. An employee shall have the right to be absent from work to force majeure when necessary for urgent family reasons related to family members or household members, in the event of an illness or accident that makes their immediate presence essential.

"Employees shall be entitled to compensation for hours of absence due to the reasons set forth in this section to four days per year, in accordance with the provisions of agreement or, in the absence thereof, agreement the business the employees' legal representatives, provided that the employees, where applicable, provide accreditation reason for their absence."

II. The issues raised.

a. Legal leave due to family-related force majeure vs. standard leave for accompanying family members to medical appointments and tests.

The first issue raised is whether, given the existence of a specific contractual leave provision (equality plan) for accompanying family members to medical appointments and tests (both urgent and non-urgent), such leave should be considered covered by the existing leave for family-related force majeure under article .9 of the Workers’ Statute. In response, following the criteria previously established by the National Court in its March 11 ruling, conference room opts for a Solomonic solution: the contractual leave in question will remain in effect with regard to measures for accompanying family members to non-urgent medical appointments and tests, while measures for accompanying family members in emergency situations will be considered subsumed under the current article .9 of the Workers’ Statute:

"In the opinion of the conference room, it is necessary to clarify, for the sake of clarity, that while Measure 47 of the equality plan coexists with the rules and regulations in section of Article 37 of the Labor Code, this coexistence should not result in a duplication or accumulation of leave in terms of the specified durations. That is, the pool of hours provided for in Measure 47 of the equality plan for situations deemed to be ongoing (accompanying a family member to medical appointments, medical tests, and hospitalization, and unforeseen situations) shall apply only to those leaves of absence not covered by Article 37.9 of the Labor Code, and in the case of leave covered by the aforementioned section , the legal duration provisions must be strictly adhered to."

b. Paid (partially) family leave due to force majeure.

The second issue raised is whether, under the terms provided by law (that is, reference letter hours equivalent to four days per year), leave for family-related force majeure is paid as a direct result of the rule establishing it, or, conversely, is paid only if expressly agreed upon in the applicable agreement .

Based on a teleological interpretation of the rule takes into account its spirit and purpose, as well as the context and background from which it expressly derives, the conference room the Supreme Court, in its April 17 ruling, ultimately confirmed the paid nature of the leave under the terms established by law, regardless of whether the applicable agreement expressly provides for such compensation:

"This clearly demonstrates the spirit and purpose of the rule, reflecting the legislature's clear and explicit intent to establish that the hours equivalent to four days per year that workers may use to take such leave are paid, without prejudice to any provisions that collective bargaining agreements may establish in this regard.

In doing so, the government has sought to make it clear that the leave entitlement includes, in any case, a legal minimum of paid hours equivalent to four days per year, subject to any provisions set forth in collective bargaining agreements or other collective agreements.

"The legislature's intention is simply to refer in this way to the ordinary legal framework governing the sources of the employment relationship set forth in Article 3 of the Workers' Statute, establishing as a mandatory minimum a paid leave period equivalent to four days per year."

In any case, once it is accepted that this leave is partially paid (note reference letter to hours equivalent to four days per year), a separate issue is how such leave should be compensated, a matter that could indeed be determined through collective bargaining:

"It is only after establishing that initial assertion that it adds 'in accordance with the provisions of agreement or, failing that, in agreement the business the workers’ legal representatives...,” in a subordinate clause that can only be interpreted as a means of leaving open the possibility that, under that initial premise of mandatory law, collective agreements may specify other distinct aspects regarding the form, manner, content, and scope of that compensation.”

III. Conclusions.

First: A specific standard leave provision (equality plan) allowing employees to accompany family members to medical appointments and tests may remain in effect for non-urgent medical appointments and tests.

Second: A specific type of standard leave (equality plan) intended to allow employees to accompany family members in medical emergencies may be covered by the existing leave provision for family-related force majeure.

Third: Under the terms established by law (that is, reference letter hours equivalent to four days per year), leave for family-related force majeure is paid, regardless of whether the applicable agreement expressly provides for such pay.

Fourth: Assuming the foregoing premise regarding compensation, collective agreements may specify other aspects relating to the form, manner, content, and scope of such compensation.

IV. Final Note.

Notwithstanding the foregoing, and since they may have gone unnoticed, it is of extraordinary practical interest to consider the requirements , in the form of obiter dicta, the Supreme Court ruling of March 11 holds must be met for a status family force majeure to exist. These requirements as follows:

(i) "The existence of an urgent and unexpected family matter related to an accident or illness, as also referred to in Article 37.3.b of the Labor Code."

(ii) "The aforementioned accident or illness involves a family member or cohabitant of the employee. The provision allows, in principle, for the inclusion of any person connected to the employee—whether through family ties, blood relations, or marriage—or simply through cohabitation; it can be said that there is a very broad range of individuals who give rise to the right to take leave. The term "person giving rise to the need for urgent care" is broadly defined to include family members and cohabitants, without specifying a blood or marital relationship; therefore, it is defined much more broadly than in the case of leave for the care of family members."

(iii) "This leave may only be taken when the employee’s presence is required immediately, since the employee’s absence is justified only if this requirement is met. This clarification appears to indicate that the leave is not contingent on the immediate or urgent nature of the situation, a requirement not specified in Article 37.3.b ET, which could lead one to believe that the leave or absence under Art. 37.9 ET is limited solely to the first immediate and specific response to a need of a family member or cohabitant, which does not extend over time, and that, where applicable and with the same origin and cause, it could lead, following the specific response, to extended care for five days by invoking leave for the care of family members."

(iv) "Although Article 37.9 of the Workers' Statute does not specify either the maximum duration of the absence or the issue times an employee may be absent from work address family emergencies, it is understood that the absence shall be for the time strictly necessary and indispensable to address the urgent family need. Therefore, the length of the absence will vary depending on status being addressed and cannot be determined in advance, but within the limits defined by contractual good faith."

(v) "In the second sense, employees also face issue limits on absences or leave related to dealing with family emergencies."

(vi) "However, what is established is the maximum number of absences that will be paid, since the law only provides for the right to pay for a period equivalent to four days per year."