Childcare leave for a minor child affected by cancer or another serious illness: Criteria for both parents to work.

Consultation on the application of article 49, letter e) of the consolidated text of the Law on the Basic Status of Public Employees (hereinafter TRLEBEP), approved by Royal Legislative Decree 5/2015, of 30 October, when both parents are teaching officials and the mother is enjoying maternity leave.

In particular, it is questioned whether the requirement that “both parents work” is understood to be fulfilled in the event that the mother is enjoying the leave for childbirth and the father can therefore enjoy the leave for care of a minor child affected by cancer or another serious illness, receiving their full remuneration.

Article 49(e) of the TRLEBEP regulates leave for the care of a minor child affected by cancer or other serious illness in the following terms:

“(e) Leave for the care of a minor child, affected by cancer or other serious illness: the official shall be entitled, provided that both parents, adoptive parents, foster parents or foster parents of a permanent nature work, to a reduction in the working day of at least half the duration of the working day, receiving full remuneration from the budgets of the organ or entity in which he or she has been providing his or her services, for the care, during the hospitalization and continued treatment, of the minor child, affected by cancer (malignant tumours, melanomas or carcinomas) or for any other serious illness involving a long-term hospital stay and the corresponding need for health care; For this purpose, the mere fulfilment of the age of 18 of the child or the minor subject to permanent or foster care for adoption purposes will not cause the reduction in the working day to be extinguished, if the need for direct, continuous and permanent care is maintained..

However, after the age of 18, the right to a reduction of the working day until the person in charge of the child reaches the age of 23 may be recognized in the cases in which the cancer or serious illness has been diagnosed before reaching the age of majority, provided that at the time of application the requirements established in the previous paragraphs are accredited, except for age.

Likewise, the right to this reduction of the working day will be maintained until the person in charge turns 26 if, before reaching the age of 23, he/she also accredits a degree of disability equal to or greater than 65 percent.

When both parents, adoptive parents, foster parents for adoption or foster parents of a permanent nature, by the same subject and causative act, have the necessary circumstances to be entitled to this permit or, where appropriate, may have the status of beneficiary of the benefit established for this purpose in the Social Security Regime that is applicable to them, the official shall be entitled to receive the full remuneration for the duration of the reduction of his working day, provided that the other parent, adoptive parent or foster parent for adoption purposes or foster day of a permanent nature, without prejudice to the right to the reduction of his or her social benefit established for this purpose. Otherwise, they will only be entitled to a reduction in working hours, with a consequent reduction in remuneration.

Likewise, in the event that both provide services in the same body or entity, it may limit their simultaneous exercise for reasons based on the correct functioning of the service.

When the sick person marries or constitutes a de facto couple, the right to leave is granted to the spouse or de facto partner, provided that he/she proves the conditions for being a beneficiary.

The conditions and assumptions in which this reduction of the working day can be accumulated in full days will be established.”

According to the precept transcribed, in the event that the two parents of the minor affected by cancer or another serious disease work, only one of them will be able to receive full remuneration when the two enjoy this same permit.

In the case raised in the consultation letter, both parents work and are entitled to leave for the care of a minor child affected by cancer or another serious disease, although the mother is not currently enjoying this leave, but the birth leave for the biological mother, so nothing prevents the other parent from enjoying leave for the care of a minor child affected by cancer or another serious disease, receiving their full remuneration.

However, once the mother completes her birth permit for the biological mother, if both parents choose to take care of a minor child affected by cancer or another serious illness, it must be taken into account that one of them will have the right to receive their full remuneration, provided that the other, without prejudice to their right to a reduction in working hours, is subject to the consequent reduction in remuneration.

In addition, if the two provide services in the same teaching centre, the latter may limit the simultaneous enjoyment of the permit for reasons based on the correct functioning of the service.

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.