Royal Decree-Law 5/2023, of June 28, with effect from June 30, includes important measures in the labor field, such as new paid leave, reinforcement of work-life balance, adaptation of working hours and domestic partnerships.
The Royal Decree-Law 5/2023, of June 28, with effect from June 30, includes important measures in the labor field, such as new paid leaves, reinforcement of the conciliation, adaptation of working hours and domestic partnerships.
We inform you that in the BOE of June 29 (correction of errors in the BOE of July 1, 2023), Royal Decree-Law 5/2023 of June 28 (RDL 5/2023) has been published, whereby certain measures are adopted and extended in response to the economic and social consequences of the war in Ukraine, to support the reconstruction of the island of La Palma and other situations of vulnerability; of transposition of European Union Directives on structural modifications of commercial companies and reconciliation of family and professional life of parents and caregivers; and of implementation and enforcement of European Union law.
This RDL 5/2023 includes important measures of a labor nature, such as those affecting the reconciliation of family and professional life, foreseen in the Family Bill and finally approved by this RDL 5/2023, and which entered into force on June 30, 2023.
The regulation transposes EU Directive 2019/1158 of June 20, 2019, on the reconciliation of family and professional life for parents and caregivers, amending the Workers’ Statute, the Law on the Basic Statute of the Public Employee and the Law on Social Jurisdiction.
Among its new features, the following stand out:
- The right to conciliation is reinforced
- A new parental leave is created
- Certain paid leave and the right to adapt the working day for the care of children or disabled persons are extended, and
- Where the Law refers to the spouse, it extends its application to domestic partners.
The following is a summary of the main novelties included in RDL 5/2023.
- The right not to be discriminated against for exercising work-life balance rights.
It includes the right of workers in the labor relationship not to be treated unfavorably for exercising the rights of reconciliation or co-responsibility of family and work life.
- Extension of the right to adapt the working day for people with dependents.
Employees are granted the right to request flexible working arrangements (adaptations to the length and distribution of the working day, in the organization of working time and in the form of work, including the provision of remote work) for the care of:
- daughters and sons over 12 years of age;
- spouse or common-law partner;
- relatives by consanguinity up to the 2nd degree of the worker;
- other dependents when they live in the same household;
- and who for reasons of age, accident or illness are unable to look after themselves.
The terms of the exercise of this right may be established in collective bargaining, but, in the absence of collective bargaining, the company will be obliged to open a prompt negotiation process when a request is submitted. This process may not be extended for more than 15 days (up to now it was 30 days), establishing the presumption of concession if this period elapses without expressly motivated opposition from the company.
The communication of the acceptance or rejection of the request shall be made in writing and in the case of refusal or in the case of an alternative proposal, the objective reasons on which the decision is based must be stated.
The return to the situation prior to the adaptation of the working day is regulated in the following terms:
- The worker will have the right to return to the situation prior to the adaptation not only when the agreed or foreseen period concludes, but also when the causes that motivated the request have ceased to exist.
- In all other cases, if there is a change of circumstances that justifies it, the company may only deny the requested return when there are objective and justified reasons for doing so.
This new regulation applies to the working day adaptations in force as of June 30, 2023.
- New paid leave
The scope of family members entitled to paid time off from work is extended, as well as the time of enjoyment of certain leaves of absence:
- 15 calendar days in case of marriage and domestic partnership registration.
Attention. For the purposes of the possibility of enjoying the work-life balance rights recognized in the legislation in force, other forms of cohabitation other than marriage (domestic partnerships) are included, as well as relatives by blood of domestic partners.
The extended rights are those related to marriage leave of 15 days, which is expressly extended to unmarried couples, to the adaptation of working hours, to caregivers’ leave and to leave of absence.
- 5 days for serious accident or illness, hospitalization or surgery without hospitalization that requires home rest of the spouse, domestic partner or relatives up to the second degree of consanguinity or affinity, including the blood relative of the domestic partner, as well as any other person other than the aforementioned, who lives with the worker in the same home and who requires effective care of the worker.
- 2 days for the death of the spouse or common-law partner, or relatives up to the second degree of consanguinity or affinity. When for this reason the worker needs to make a trip for this purpose, the period shall be extended by 2 days.
- 4 days a year to be absent from work due to force majeure, when it is necessary for urgent family reasons related to relatives or persons living with them, in case of illness or accident that make their immediate presence indispensable. These hours of absence must be paid when they do not exceed 4 days per year (in accordance with the provisions of the collective bargaining agreement or the agreement between the company and the workers’ legal representatives). The reason for the absence must be accredited.
- New unpaid parental leave
It is established that workers will have the right to parental leave of a maximum of 8 weeks, continuous or discontinuous, for the care of a son, daughter, or foster child for a period of more than one year, until the child reaches the age of 8.
This leave may be taken full time or part time, and constitutes an individual right of the workers, men or women, so it cannot be transferred from one parent to the other.
The worker must specify the start and end date of the leave and must notify the company 10 days in advance (or the date specified in the collective bargaining agreements), except in the case of force majeure.
If two or more workers generate this right by the same causal subject (or in other cases defined by the collective agreements in which the enjoyment of parental leave in the requested period seriously alters the proper functioning of the company), the company may postpone the granting of leave for a reasonable period, justifying it in writing and after having offered an equally flexible alternative of enjoyment.
It is also added that the employment contract may be suspended for parental leave. The suspension exonerates from the reciprocal obligations to work and pay for the work, so the leave is not paid.
In the event of parental leave, the salary to be taken into account for the purposes of calculating the indemnities provided for in the Law will be that which would have corresponded to the worker without considering the reduction of the working day, provided that the maximum period legally established for such reduction had not elapsed.
- Coincidence in the same company of both parents enjoying breastfeeding leave, reduced working hours or leave of absence for childcare
It is established that in the event of coincidence in the same company of both parents taking breastfeeding leave, reduced working day or leave of absence -all of them family-related leave or periods of absence- the company may limit their simultaneous exercise for justified reasons by providing an alternative leave plan that ensures the enjoyment of both employees.
It must be considered that the persons who are enjoying this leave on June 30, 2023, will continue to do so in accordance with the regulations applicable at the beginning of their enjoyment and that this will not limit the parental leave.
- Leave of absence for care of family members: domestic partner
Leave of absence for the care of a family member (2 years maximum, except for longer periods by collective bargaining) is extended to the care of the spouse or common-law partner and blood relative of the common-law partner.
The obligation of the company to offer an alternative plan when two members of the company wish to exercise the right of leave for the same person and its exercise is limited, as well as the mandate to consider the promotion of co-responsibility between women and men and to avoid the perpetuation of gender roles and stereotypes, are also transferred to this case.
Again, it should be considered here that the persons who are enjoying this leave on June 30, 2023, will continue to do so in accordance with the regulations applicable at the beginning of their enjoyment and that this will not limit the parental leave.
- New causes of nullity of dismissal
Dismissals are declared null and void due to:
- taking 8 weeks parental leave.
- absence from work with the right to remuneration due to death, serious accident or illness, hospitalization, or surgery, without hospitalization requiring home rest, of relatives up to the second degree of consanguinity or affinity.
- when they have requested or are benefiting from adaptations to the working day to care for children over 12 years of age; the spouse or common-law partner; relatives by blood up to the second degree of consanguinity of the worker, as well as other dependents living in the same home, and who for reasons of age, accident or illness are unable to care for themselves.
All of the above, unless it is proven that the dismissal is justified.
- Other labor novelties of RDL 5/2023
8.1 Public Employment. Leaves of absence
In relation to Public Employment, the Law of the Basic Statute of the Public Employee is amended in line with some of the previously analyzed leaves of absence:
- Leaves are extended for marriage and partnership, de facto, for in, illnesses, accidents, alterations in the health of family members or cohabitants and for death.
- Parental leave is extended to leave for reasons of reconciling personal, family and work life, for reasons of gender violence or sexual violence, and for victims of terrorism and their immediate family members.
8.2 Extension of the limitation of the cause of dismissal and ERTE in La Palma.
The impossibility for companies benefiting from direct aid to justify dismissal due to the increase in energy costs is extended until December 31, 2023. Failure to comply with the above will entail the reimbursement of the aid received. Likewise, companies that avail themselves of the measures for the reduction of working hours or suspension of contracts regulated in article 47 of the ET for reasons related to the invasion of Ukraine and that benefit from public support will not be able to use these causes to carry out dismissals.
Secondly, the ERTEs linked to the situation of temporary force majeure due to the volcanic eruption on the island of La Palma are also extended:
- In Social Security matters, the deferral of the payment of Social Security contributions of companies and self-employed workers affected in their activity by the volcanic eruption is extended for 6 more months. The extraordinary Social Security measures for self-employed workers and the exemption in the payment of Social Security contributions and concepts of joint collection, of a higher amount than that applicable in general, in the above mentioned ERTE are also extended.
- The ERTEs linked to the situation of temporary force majeure in the case of companies and workers of the Canary Islands affected by the volcanic eruption registered in Cumbre Vieja are extended until December 31, 2023.
8.3. Trainees: social security contributions for training internships or external academic internships
The legal regime for the inclusion in the Social Security system of students who carry out training internships or external academic internships included in training programs (scholarship holders), initially scheduled for October 1, 2023, is postponed to January 1, 2024.
On the other hand, the maximum period of time for signing the special agreement that allows them to compute the contribution for the periods of training or non-working and academic internships carried out before January 1, 2024, has been extended from 2 to 5 years.
For further information, please contact Labor consulting
