Deduction of breastfeeding time without pay from the computation of breastfeeding leave in full days.

The question raised is about how the calculation of the corresponding days for breastfeeding leave should be carried out in those cases in which the employee or public employee has enjoyed during the first twelve months since the birth of the minor an unpaid leave.

Firstly, the legal framework for implementation needs to be analysed. With regard to the permission to breastfeed a child under 12 months of age, this is regulated in article 48.f) of Royal Legislative Decree 5/2015, of 30 October, which approves the revised text of the Law on the Basic Status of Public Employees (TREBEP), which establishes that civil servants shall have the right to a permit:

“By breastfeeding a child under 12 months of age, they will be entitled to one hour of absence from work, which can be divided into two fractions. This right may be replaced by a reduction of the normal working day by half an hour at the beginning and end of the day, or by one hour at the beginning or end of the day, for the same purpose.

The permit referred to in this paragraph constitutes an individual right of civil servants, without its exercise being transferable to the other parent, adoptive parent, guardian or foster parent.

It is possible to request the replacement of breastfeeding time with a paid leave that accumulates in full days the corresponding time. This modality may be enjoyed only after the completion of the permit by birth, adoption, custody, foster care or the parent other than the respective biological mother.

This permit shall be increased proportionately in cases of childbirth, adoption, foster care or multiple foster care.”

In this way, the possibility of accumulating the breastfeeding permit in full days is specifically recognized as appropriate.

Taking into account the above, the question raised focuses on the length of paid leave that accumulates in full days the breastfeeding leave in case the public employee has enjoyed an unpaid leave in the twelve months since the birth of the child, under article 73 of Decree 315/1964, of 7 February, approving the Articulated Text of the Law on Civil Servants of the State,

The Higher Personnel Commission, by agreement of December 30, 2021, has established a series of interpretative criteria relating to breastfeeding leave. Specifically, with regard to the duration of the breastfeeding leave, its duration had to be calculated according to the general working day in the General State Administration, thirty-seven and a half hours per week.

Based on the above, the duration of the permit, in general, is four weeks, without prejudice to the particularities of the specific case.

This is not affected by the fact that they have been granted unpaid leave before or after they have been granted accumulated breastfeeding leave. Despite the fact that leave without pay, in accordance with the indicated regulations, cannot be considered as an effective work service, in the event that it is granted, there is no disassociation of the fact that gives rise to the breastfeeding permit with the permit itself, and all of this, despite the fact that the legislator has not contemplated the possibility that there could be an obvious situation of inequality in the treatment of the same protected situation between the two modalities of enjoyment: the lactation of the child, depending on whether the enjoyment of the reduction of the working day is chosen or the permit since, in the first case, he would only be entitled to the reduction corresponding to the period in which the minor service was granted,In this regard, note should be taken of the frequent presumption of entitlement to breastfeeding leave and the immediately subsequent application for leave of absence for the care of a child that does not limit the said leave.

Consequently, and without prejudice to the powers of the management centre, the criterion of this Management Centre is that, in view of the applicable legal framework, if the child ' s unpaid leave is recognized during the child ' s twelve months of age, the leave does not deprive the child of its purpose, and therefore its recognition in the terms provided by law is appropriate, without it being appropriate to link its enjoyment to the effective working time developed by the requesting parent until the child reaches that age.

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.