Having a child, or adopting it, implies that, at times, we have to take time off work to take care of it. However, there are situations that prevent us from working for a while. Does that mean we lose our jobs? Fortunately, no, because there is a tool to help parents: child care leave.
If you have never heard of it, or if you do not know everything, today we want to focus on this particular topic so that you know what it consists of, who can request it, what is its duration and what happens in that period.
What is a child care leave?
According to the Article 46.3 the Workers' Statute: "Workers will have the right to a period of leave of absence of no more than three years to care for each child, both when it is by nature, as by adoption, or in cases of custody for the purpose of adoption or permanent foster care," counting from the date of birth or, where appropriate, from the judicial or administrative resolution.
Workers to care for a relative up to the second degree of consanguinity or affinity will also have the right to a period of leave, lasting no more than two years, unless a longer duration is established by collective bargaining, than for reasons of age, accident, illness or disability cannot fend for himself, and does not carry out paid activity.
The leave of absence contemplated in this section, the period of which may be enjoyed in a fractional manner, constitutes an individual right of the workers, men or women. However, if two or more workers of the same company generate this right by the same causative party, the employer may limit its simultaneous exercise for justified reasons of operation of the company.
When a new causative subject gives the right to a new period of leave, the beginning of the same will end the one that, if applicable, has been enjoying.
The period in which the worker remains on leave of absence in accordance with the provisions of this article will be computable for seniority purposes and the worker will have the right to attend professional training courses, whose participation must be summoned by the employer, especially with occasion of his reinstatement. During the first year you will have the right to reserve your job. After this period, the reservation will be referred to a job in the same professional group or equivalent category.
However, when the working person is part of a family that is recognized as a large family, the reservation of their job will be extended up to a maximum of fifteen months in the case of a large family of general category, and up to one maximum of eighteen months if it is a special category. When the person exercises this right with the same duration and regime as the other parent, the job reservation will be extended to a maximum of eighteen months. "
In other words, we are talking about a right that any worker, man or woman, has to request a "break" in your employment relationship as long as it is needed to care for a child under 3 years of age, or in the case of foster care or adoption of a minor.
During that time, work is stopped, but with consequences: by not working, the company is not obliged to pay. What is maintained is the right of that worker so that, once the care of the child is finished, they can rejoin the company.
What requirements must be met to qualify for child care leave?
If you are thinking of requesting this right from the company, you should know that there are a series of requirements that you must meet in order for it to be granted. The first of these is undoubtedly the fact that there is a child of 3 years or less. This can be a legitimate child, as well as in foster care or adoption.
You must inform the company that you accept this right in writing, and always with a minimum notice of 15 days, which may be longer if something else has been established by collective agreement. In this application, you must reflect the minor's data, his date of birth, and the start and end of the leave of absence.
The company, for its part, has to pay the worker for the time he has been working, providing him with the salary, vacations not taken, extra pay ... Many consider it to be a kind of settlement, but it is not. The worker is still linked to the company, and has a job reservation, in such a way that he could regain his position when he wanted to end the leave of absence.
Once the intention to request the leave of absence has been communicated, the company cannot refuse to accept it, since, as a right, the law protects you. Therefore, in the event that there is a denial, or that a dismissal occurs, it may be denounced and declared void, with consequences for the company.
The duration of the child care leave
Child care leave It can be requested at any time as long as the child is under 3 years of age. For example, you could apply for it when you have just been born and not have to return to your job until you are three years old. Or you can work and at any time in the period between 0 and 3 years, take a leave of absence.
As well it is accepted to order it in a fractional way, that is, it can be a day, a week, months ... There is no minimum or maximum period to be met, and it can be requested every x time and then rejoin, always with prior notice to the company.
Now, although being on leave of absence really means that there is a reservation of the job, the truth is that it must be qualified. And it is that:
- Job reservation is only carried out for the first year. In other words, if a worker requests a leave of absence for childcare for a period of one year, he will be able to return to his same job.
- If the leave is greater than one year, there is no job reservation. When the period is extended beyond one year, although the relationship between the worker and the company continues to exist, the truth is that the employer no longer has the obligation to save that job for that person. When you return, you must offer him a job in the same professional group or category, never lower.
What happens while I'm on leave
Once requested, and carried out, as we have mentioned before, it implies that you are not going to work, but you are not going to receive a salary from the company either. The relationship is suspended until it can be resumed.
However, during that time, situations may occur that affect the worker on leave of absence, such as:
No quote
Indeed, the company does not have the obligation to contribute for that worker, But the Social Security will consider that period as listed, not for any procedure, but for some only. Specifically, and based on article 237 of the General Social Security Law, periods of leave for childcare are listed in the event of retirement, permanent disability, death and survival, maternity and paternity.
Now, in the case of seniority, it is computable in order to request training courses, for example, or to accumulate "extras", although they would not receive them at that time, only when the employment relationship was resumed.
Dismissals during leave
Although the employer can fire the worker while on leave of absence, the normal thing is that that dismissal is analyzed to see if it is really appropriate or null. The same can happen if you include it in an ERE or an ERTE.
Work in another company
This situation is not usually normal, since if you have requested a leave of absence for childcare, it is almost unthinkable that you go to work in another company and not in the one where you are supposed to have the job. But it can be understood in the case that it is a job with a shorter schedule, or that allows reconciling work and family life (something that cannot be done in the case of the main company).
Still, the particular case would have to be analyzed.
Unemployment during leave
If you think that you can request unemployment in a leave of absence you are wrong. Really You are still linked to the company, and therefore you are not in a legal situation of unemployment.
The same happens in case you wanted to request some help. This would be denied because for legal purposes you are an active worker, although during that period of leave you will not receive a salary (you do not work either).