Possibility of applying for the passage to the situation of voluntary leave for particular interest for physical and mental problems.

The consultation is about the possibility of applying for the transfer to the situation of voluntary leave for particular interest due to physical and mental problems. Other issues, such as mobility for health reasons and job adaptation, are also discussed.

The consolidated text of the Law on the Basic Status of Public Employees, approved by Royal Legislative Decree 5/2015, of 30 October (hereinafter, TRLEBEP), provides in article 89.2, in relation to voluntary leave for private interest, the following:

“2. Career officials may obtain voluntary leave for private interest when they have provided effective services in any of the Public Administrations for a minimum period of five years immediately prior.

However, the Civil Service laws enacted pursuant to this Statute may establish a shorter duration of the period of service provision required for the career officer to apply for leave and the minimum periods of stay shall be determined.

The granting of voluntary leave due to particular interest will be subordinated to the needs of the service duly motivated. It may not be declared when the public official is instructed in disciplinary proceedings.

Voluntary leave shall be declared ex officio for reasons of particular interest when the cause that determined the transition to a situation other than that of active service has ended, the obligation to apply for re-entry to active service is breached within the time limit that is determined by regulations.

Those who are on leave due to a particular interest will not earn any remuneration, nor will the time they remain in that situation be computable for the purposes of promotions, triennials and rights in the Social Security system that is applicable to them.”

Likewise, it should be understood that the provisions of article 16 of Royal Decree 365/1995, of 10 March, approving the Regulations on Administrative Situations of Officials of the General Administration of the State, in the part that does not contravene TRLEBEP, remain in force. With regard to the duration of this leave, the third paragraph of that article states that each leave period shall have a duration of not less than two continuous years.

Thus, in order to obtain voluntary leave for private interest, it is necessary to have provided effective services for a minimum period of five years, without it being necessary to adduce any cause. Therefore, if the requirements required by the standard are met and the needs of the service allow it, voluntary leave may be granted for the particular interest, regardless of the health problems of the staff member. However, if granted, it must remain in this situation for at least 2 years.

Without prejudice to the option of applying for leave of absence in the particular interest, article 66 bis of Royal Decree 364/1995 of 10 March, approving the General Regulations on the Admission of Staff to the Service of the General State Administration and on the Provision of Jobs and Career Advancement of Civil Servants of the General State Administration, provides that:

“1. Upon request based on the health or rehabilitation of the staff member, his or her spouse, or dependent children, staff members may be assigned to jobs in different administrative units, in the same or another locality. In any case, the prior report of the legally established official medical service will be required. If the reasons for health or rehabilitation are directly with the requesting official, the report of the Occupational Risk Prevention Service of the department or agency where it provides services shall be mandatory.

2. The ascription will be conditional on the existence of a vacant post, provided with a budget, whose level of destination and specific complement is not higher than that of the place of origin and which is of necessary provision. The official must meet the requirements foreseen in the list of jobs.

The secondment shall be of a definitive nature when the staff member so occupies his or her original post and, in this case, he or she shall remain in the new post for a minimum of two years, except in the cases provided for in article 41.2 of these Regulations.

The cessation of the post of origin and the takeover in the new job must take place within three working days if it does not involve a change of residence of the official, or within one month if it involves a change of residence.

3. They shall be competent to resolve the bodies referred to in Article 64.3 of this Regulation.”

That is, if the official cannot perform the functions that he currently performs, and this is duly accredited, he may request mobility for health reasons, according to the procedure described in article 66 bis of Royal Decree 364/1995, of 10 March.

Finally, in addition to the above, Article 59 of the TRLEBEP must be taken into account, which provides in its second paragraph the following: “Each Public Administration shall take the necessary measures to establish reasonable adaptations and adjustments of times and means in the selective process and, once this process has been completed, adaptations in the workplace to the needs of persons with disabilities.”

Likewise, article 10 of Royal Decree 2271/2004, of 3 December, which regulates access to public employment and the provision of jobs for people with disabilities, in relation to the adaptation of jobs, indicates the following:

“2. The ministry or agency to which the job is assigned will be in charge of the assessment, realization and financing of the adaptations necessary for the incorporation of the disabled employee, without prejudice to the subsidies or other type of aid that may be applied to this purpose.”

In this way, if the person concerned has a declared disability, which must be duly accredited, he/she may request the adaptation of the work by attaching to the request the report of the competent body that accredits the origin of such adaptation to the ministerial department where he/she has been providing services.

All of the foregoing is without prejudice to recalling that, according to the regime of competences of this management center, the answers to queries issued by this general directorate are merely informative and, consequently, are not of a binding criterion, nor do they give rise to rights or expectations of law, nor imply any link with the type of procedures to which they refer. Furthermore, in the absence of a mandatory or binding nature, the bodies receiving such replies may, where appropriate, finally take a decision that does not correspond to the opinion contained therein.

The responses to queries contained in this bulletin address the issues raised in the light of the regulations in force at the time of their issuance, so that such responses may be affected by subsequent legislative changes or judicial decisions.