Understanding Employment Suspension (K) in Spain

Posted on Nov 6, 2024 in Law & Jurisprudence

1. Employment Suspension (K) in Spain

K refers to the suspension of an employment contract, where an employee neither works nor receives regular salary for a specific period, after which they return to work.

2. Causes of Employment Suspension (K)

  • Temporary disability
  • Maternity, adoption, or foster care
  • Parenting, pregnancy risk, or breastfeeding risk
  • Disciplinary suspension
  • Force majeure (economic, technical, or organizational reasons)
  • Unpaid leave
  • Mutual agreement
  • Valid reasons stipulated in the contract
  • Strike or lockout

3. Definition of Temporary Disability and Duration

  1. Incapacity for work due to common or occupational contingencies of short duration, expected to be cured within 12 months, extendable by 6 months.
  2. Observation periods for occupational diseases, prescribed when working conditions are below standard, extendable beyond 6 months.

4. Requirements for Common Contingency Benefits

  • Be discharged or in a similar situation.
  • Have contributed 180 days within the 5 years preceding the leave (for illness).

5. Requirements for Occupational Contingency Benefits

  • Be discharged or in a similar situation. If the company violates this obligation, the employee still receives benefits.
  • No prior contribution payment is required.

6. Company Payment and Permanent Disability

  1. The company pays the worker’s IT (Incapacidad Temporal – Temporary Disability) benefit, initially like a regular salary, and later deducts this amount from the social security payment.
  2. The first 12 days are covered by the company.
  3. This system exists because the administration doesn’t consider certain disabilities to be of short duration.
  4. Permanent Disability: A worker’s situation after prescribed treatment, with serious, definitive anatomical or functional reductions that impair or nullify their ability to work.
  5. Degrees of Disability and Effects:
    1. Partial Permanent Disability: At least 33% incapacity, but less than 100%, for regular work. The employee returns to their position, potentially adapted by the company, and receives social security compensation.
    2. Total Permanent Disability: 100% incapacity for usual work. The contract is terminated, and the employee receives a lifelong pension.
    3. Absolute Permanent Disability: 100% incapacity. Effects are the same as Total Permanent Disability.
    4. Severe Disability: Total permanent incapacity for basic life tasks. Effects are the same as Total Permanent Disability.

7. Maternity Leave Duration and Treatment

  1. Duration: 16 weeks, plus 2 weeks per child after the second in multiple births, and 2 additional weeks for a disabled child.
  2. Rest Treatment:
    1. Required Rest: 6 weeks immediately after delivery, non-transferable to the father, non-waivable, but can be enjoyed part-time voluntarily.
    2. Remaining Weeks: Transferable to the father, waivable, and can be enjoyed part-time.

8. Levels of Maternity Protection

  1. Contributory Level:
    • Definition: Benefits are received if specific requirements are met.
    • Requirements: Be discharged or in a similar situation, and have contributed sufficiently (no contributions required under 21, 90 days in the past 7 years or 180 days in working life between 21 and 26, and 180 days in the past 7 years or 360 days in working life for 27 and older).
    • Duration: Generally 16 weeks, plus additional weeks for multiple births and disabled children.
    • Benefit Amount: 100% of the contribution base for common contingency, divided by the number of days covered. For multiple births, an additional allowance equal to the first child’s benefit is granted, but only for 6 weeks.
  2. Non-Contributory Level:
    • Definition: Benefits are received even without prior contributions.
    • Requirements: Be discharged or in a similar situation.
    • Duration: Same as the contributory level.
    • Amount: 100% of IPREM (Indicador Público de Renta de Efectos Múltiples) for 42 days only.

9. Adoption and Foster Care Leave

The same as maternity leave at the contributory level (see section 8).

10. Conditions for Adoption and Foster Care Leave

  • Adoption (domestic or international)
  • Foster placement (permanent or simple/temporary for over a year)
  • Child must be under 6 years old (or over 6 and under 18 if disabled, from overseas, or with integration difficulties).

11. Requirements for Paternity Leave

  • Be discharged or in a similar situation.
  • Have contributed for over 180 days in the 7 years prior to the leave, or 360 days in total working life.

12. Paternity Leave Duration

13 days, increasing by 2 days per child after the second in multiple births, and 2 additional days for each disabled child. The government plans to extend this to 4 weeks.

13. Requirements for Breastfeeding Leave

  • Be discharged or in a similar situation.
  • No prior contribution is required, and the employee receives the benefit even if the company fails to comply.

14. Risk During Pregnancy

If a pregnant woman’s work conditions pose a risk, the company must adapt the workplace, change her job, or suspend the job if adaptation is not possible.

15. Prison Leave

Applies to employees in jail awaiting trial, but not yet sentenced.

16. Unpaid Leave

  1. In mutual agreement leave, the reason is foreseen in the contract. In forced leave, the reasons are legal and not initiated by the company.
  2. Unpaid leave is not considered abusive if it’s not initiated by the company.

17. Types of Unpaid Leave

  • Forced Leave: For public office, lasting for the duration of the office plus one month to rejoin work.
  • Voluntary Leave: Can last up to 5 years, requested for personal reasons.
  • Active Childcare Leave: Lasts 3 years, starting from the child’s birth.

18. Effects of Unpaid Leave on Seniority

  • Forced Leave: Seniority is maintained.
  • Voluntary Leave: Seniority is not maintained, and return to the job is subject to vacancy availability.
  • Parental Leave: Seniority is maintained. Return to the same position is guaranteed during the first year, and a similar position in the second and third years.

19. Unemployment Benefits

Refers to receiving financial assistance due to unemployment.

20. Lockout

A measure a company can take when worker unrest threatens production. Requires authorization from the labor administration.