Comment
I. The issue at hand.
In the context of a specific labor dispute, the issue at hand is whether or not employees are entitled to receive an attendance bonus attendance in the applicable agreement in cases of absence from work paid leave or temporary disability.
The discussion because the business pay the aforementioned bonus when employees take paid leave (including, among others, leave due to a death in the family, hospitalization, a family member’s surgery, sick days that do not result in temporary disability, time required to fulfill an unavoidable obligation, or prenatal exams and childbirth preparation classes, etc.), nor does it pay the bonus when employees are status temporary status (whether due to a common illness or a work accident). However, unlike what happens with other types of paid leave, when workers’ legal representatives are absent from their work space their credit , the business pay them the aforementioned attendance bonus.
In light of the foregoing, it should be noted (and this is very important for understanding the exact scope of this case law) that the issue at hand is not whether paid leave or temporary status is taken into account for the purpose of eligibility for the attendance bonus attendance question or for calculating (proportionally or otherwise) its amount. What is at issue here is whether, when an employee is on paid leave or has their work contract suspended work temporary disability, said attendance bonus must be paid.
II. — A flawed budget as a starting point: reducing certain rights below legal limits in exchange for expanding other, different rights.
Even though this is an issue that conference room does not address because it has not been established as a proven fact—given that we are dealing with a subject depends almost entirely on the terms of agreement —it is worth drawing attention to an erroneous budget as a starting point. Specifically, the assumption that—based on an alleged relationship of bilateralism, reciprocity, and consideration—certain labor rights may be reduced below legal limits through agreement in exchange for expanding other, distinct rights. This argument—regardless of the validity of the so-called “total binding effect” clauses in collective agreements (the scope and content of which must be determined on a case-by-case basis)—is categorically rejected by conference room :
“It cannot be accepted that the exchange within a rule allows certain rights to be reduced below legal limits or to be structured in violation of mandatory provisions, or that improvements in certain areas might even serve as degree scroll legitimize differences in attention on prohibited grounds. First, because there are mandatory constitutional provisions that are not subject to exchange even at the individual level—and this is the case with anti-discrimination provisions regarding illness, gender, and work-life balance. These are not rights that can be waived, not even at the individual level. And second, because the individual and collective levels must not be conflated; thus, collective negotiators cannot sacrifice individual rights that are against the law to secure collective improvements, since those who suffer the loss of their rights may not be the same as those who benefit from the improvements.”
III. A necessary preliminary legal distinction: the different legal frameworks governing compensation for leave of absence and for the suspension of an work contract work temporary disability.
Although the two institutions differ in terms of their nature and legal status, the fact that they are commonly grouped—without legal precision—under the generic concept of “absenteeism” compels conference room to make a necessary preliminary legal distinction—a distinction that, as it itself reminds us, stems solely and exclusively from the legislative intent:
“When the legislature chooses to classify the cause as a suspension of the contract, this implies that the employee does not accrue wages during said period of suspension. This loss of wages may be compensated, in whole or in part, by the corresponding Social Security benefits in accordance with the applicable laws and regulations governing them, which, where applicable, may be supplemented by employers based on voluntary commitments to improve benefits or through agreement contract. Conversely, if the legislature chooses to classify the status licence (unless it can in some way modify the existing right to compensation by imposing a recoverable nature), what it is doing is imposing on the business wage cost for that period of justified absence.”
1. Suspensions of the work contract.
In general, in cases where a work contract is suspended, work wages accrue, whether they consist of base pay or other wage-related payments, including those that accrue on a frequency greater than monthly:
“This lack of accrual refers not only to the wages strictly earned during the work time work to the suspension, but also to the wages earned during that time that correspond to the projected number of paid days off accrued as a result of that work to wage components that accrue over a period longer than one month, such as special payments (…)
The suspension of the work contract work any form of compensation accrued based on time worked, as periods during which the contract is suspended are excluded. This includes both wages paid within the month and items paid at intervals longer than a month; thus, if the employee’s contract was not in effect for the entire period during which such items are generated (usually the year), there is a proportional reduction in the amount of the item—as is the case, for example, with bonus payments—unless rules and regulations an agreement provide otherwise (…)
In conclusion, and for the purposes of this discussion, periods during which the work contract is suspended work entitle the employee to compensation for the days of suspension (including the proportional portion corresponding to compensation items paid at intervals longer than one month). The period during which compensation is not accrued is equal to the period of leave as defined by the dates on the leave return-to-work forms.”
The fact that this is the case work not prevent work Social Security benefits during the suspension of the work contract, as is the case with temporary disability:
“During the period of contract suspension due to temporary disability, the loss of wages is legally compensated by the Social Security system through the corresponding benefit, whose calculation basis includes not only the wages strictly corresponding to the suspension period, but also the prorated amount of special payments and other items paid at intervals longer than one month. Therefore, provided that the pro-rata calculation of these items with a frequency longer than one month has been performed correctly, their amounts are also included in the benefit (always up to the maximum contribution base or cap, of course).” In any case, “the fact that wages are not accrued during the status temporary disability, under the terms described, is merely a consequence of the strict application of current labor and Social Security legislation; in fact, if such payment were maintained, it would result in an overlap with the temporary disability benefit, which would raise questions as to whether its true nature is that of wages or a Social Security supplement.”
Furthermore, just like wages, the right to breaks is affected by the suspension of the work contract, since the employee accrues the right to paid breaks through their work if the work contract work Fail work Fail rights to breaks do not accrue. The consequence is that, subject to specific provisions subject , if the right to a break has not been earned, neither has the right to compensation for that break.
2. Paid leave.
Conversely, the regulations governing work permits and leaves of absence differ from those governing the suspension of an work contract work temporary disability. Setting aside unpaid or recoverable leaves of absence—which are subject to their own specific regulations—the legal framework for leaves of absence under Article 37 of the Labor Code is based on the premise that they must be paid:
“The paid leave provided for therein is not time off to recover from work, but rather excused absences from work which the legislature further requires the employer paid and non-recoverable employer . What determines the right to licence is the occurrence of a specific cause among those provided for by law or collective bargaining agreement; in such cases, the full right to licence arises licence the need to require any work period of work , such that the right is not affected—either in its inception or in its scope—by the existence of a prior period of temporary incapacity (… ) The key point here is the legal stipulation that the licence paid. The legal provision for compensation for certain periods of absence from work an exception to what would otherwise be the natural consequence of the reciprocal nature of the employment contract, insofar as it involves the exchange work wages.”
If this is indeed the case, the mandatory minimum requirement for collective bargaining agreements regarding legally regulated paid leave or time off from work is the payment of all salary components linked to the actual performance of regular work duties:
“This criterion must be applied even if the intent is to frame the concept of salary as a award not exercising the legal right to leave or licence than as a punishment or loss resulting from its exercise, since we must not fall into logical traps arising from the linguistic construction of the concept of salary, which does not alter its nature.”
IV. — The application of the aforementioned legal distinction to the resolution of the dispute at hand.
Having clarified the difference in the legal framework governing compensation between the suspension of an work contract work particularly due to temporary disability) and paid leave, conference room is now in a position to resolve the dispute in the following terms:
i. Suspension of the work contract work temporary disability: Given that the lack of accrual of the bonus corresponds to periods of contract suspension during which no salary is accrued, this regulation and the corresponding internship should be considered in accordance with the law. The conclusion is that the activity bonus does not accrue on days when the contract is suspended due to temporary disability, with the caveat that no vacation days may be counted within that suspension period. If this were the case, it would affect the right to vacation, which cannot be reduced due to the employee’s status of temporary disability nor be considered as having been taken during a period of temporary disability.
ii. Enjoy paid leave: All days of leave specified in the rule paid must result in the accrual of the attendance bonus. Basically, because the attendance bonus attendance is a regular—not exceptional—component of pay, paid monthly and linked to ordinary work activity, which is paid for every day of work and even during vacations and compensatory days off. Hence, its payment during paid leave and other paid time off forms part of the minimum guaranteed under agreement . Regardless of whether certain types of leave are linked to the fundamental right to gender equality, work-family balance, or other fundamental rights, the fact remains that, for purely legal reasons, it is not possible to deprive employees of this compensation when they exercise their right to legally mandated paid leave. In any case, the payment of the corresponding bonus cannot be considered for those days of leave for which the rule guarantee paid status (as may be the case, for example, with the period exceeding the equivalent of four workdays per year for leave due to family force majeure or for unpaid leave).
V. Conclusions.
First: Regardless of the validity of the so-called “all-or-nothing” clauses in collective agreements (the scope and content of which must be determined on a case-by-case basis), agreement cannot reduce certain labor rights below the legal limits in exchange for expanding other, distinct rights—not even on the basis of an alleged relationship of bilateralism, reciprocity, and consideration.
Second: the legal framework governing compensation differs depending on whether it concerns paid leave or suspensions of work contracts; this is true even if the latter are due to temporary disability.
Third: For this reason, a certain activity bonus may not accrue during the days when the work contract work suspended due to temporary disability.
Fourth: In any case, this activity bonus should be accrued during vacation periods.
Fifth: All days of leave specified in the rule whether statutory or contractual) as paid leave must result in the accrual of the attendance bonus.
Sixth: The payment of the corresponding premium would not apply only to those days of leave for which the relevant rule whether statutory or contractual) does not guarantee that they are paid.
VI. Final Note: The risk of extrapolating this case law to other similar, but not entirely identical, cases.
As noted at the beginning of this commentary, the case under analysis does not involve a loss of compensation associated with illness but, more specifically, a failure to accrue wages during a period of suspension of the work contract work temporary disability. This distinction is by no means trivial, since—based on an analysis of conventional (or contractual) measures to combat absenteeism—in recent months we have witnessed judicial rulings on disputes that are more or less similar, but not entirely identical.
Precisely for this reason, it must be clearly understood that a different issue from the one resolved here arises when variable compensation systems or attendance bonuses are established through conventional (or contractual) means, which—as budget their accrual—exclude, in all cases, certain periods of suspension of the work contract work temporary disability; this is, moreover, regardless of any proportional calculation of the compensation in question based on the period of contractual suspension [as recently recognized by Supreme Court Decisions 12/2026, dated January 14 (rec. 189/2024), and 159/2026, dated February 12 (rec. 264/2024)]. In these cases, we would not be dealing with a problem of contract suspension and the resulting non-accrual of wages (including supplements paid at intervals longer than one month that may have accrued during the suspension period), but rather with the creation of requirements that could result in the loss of wage rights for those who have been absent from business any of the legally provided grounds for interruption (leave) or suspension provided for by law (in particular, the status temporary disability). If this were to occur, it would be necessary to analyze the specific cause that led to the suspension of the work contract work determine whether those requirements be deemed unlawful (on discriminatory grounds) given that such suspensive cause is linked to a fundamental right.
In fact, the latter is particularly evident when the loss of rights resulting from a contractual suspension leads to unequal attention on illness, as occurs with the exclusion of periods of temporary disability (especially those arising from common contingencies) from eligibility forattendance bonusesattendance variable compensation schemes. In such cases, it must be considered that, following the enactment of Law 15/2022, this difference in attention become unlawful on the grounds of discrimination [Supreme Court Ruling 40/2025 of January 20 (Case No. 99/2024), 23/2026 of January 14 (Appeal No. 119/2025), 35/2026 of January 16 (Appeal No. 2/2025), or 159/2026 of February 12 (Appeal No. 264/2024)].
Given the foregoing, it goes without saying that we are faced with complex disputes which, based on similar but not entirely consistent judicial rulings, require appropriate legal aid light of the wide variety of scenarios that exist, so that—by taking into account the relevant nuances—the objectives can be achieved to ensure that certain bonuses or variable compensation supplements do not accrue during the suspension of the employment relationship.
