Application of the permit provided for in Article 49(e) of the TRLEBEP (includes an interpretative criterion of the Higher Personnel Commission).

The consultation analyzes the permit provided for in 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.

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 another 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 of the duration of the working day, receiving the full remuneration from the budgets of the organ or entity where he/she has been providing his/her services, for the care, during the hospitalization and continuous treatment, of the minor child, affected by cancer (malignant tumours, melanomas or carcinomas) or for any other serious illness that involves a continuous hospitalization or care for the duration of the child, For this purpose, the mere fulfilment of the age of 18 of the child or of 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, once they have reached the age of 18, the right to a reduction in working hours until the person in their care reaches the age of 23 may be recognized in cases where 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 preceding 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 by regulation.”

From the reading of the transcribed precept, the following elements are extracted:

1) Scope of application:

The permit referred to in Article 49.e) of the TRLEBEP is applicable to all official personnel included in the scope of application of this rule, regardless of the Social Security System to which they belong.

The rules and requirements for the granting of the aforementioned permit to civil servants are only those contained in Article 49(e) and, where appropriate, in the development rules that may be dictated within the scope of the Public Service.

Therefore, as has already been indicated, regardless of the Social Security System in which it is included, neither the official staff nor the financial benefit provided for in the new article 192 of Royal Legislative Decree 8/2015, of 30 October, approving the revised text of the General Social Security Law, nor Royal Decree 1148/2011, of 29 July, for the application and development, in the Social Security system, of the financial benefit for care of minors affected by cancer or another serious disease, are applicable, being expressly excluded from the scope of application of these Social Security Standards.

2) Content.

The permit regulated in article 49.e) of the TRLEBEP consists of a reduction in the working day of the official, without reduction of remuneration, in two specific cases, always referring to a minor child:

• the child has cancer;
• or, that the child suffers from a serious illness.

3) Requirements for the granting of the permit.

a) Common for both cases:

In the two cases contemplated in article 49.e) of the TRLEBEP it is necessary to prove:

or the parent-child relationship or permanent or pre-adoptive care,

or the age of the child or host,

or that the minor needs direct, continuous and permanent care of his or her parent.

In addition to these requirements that are generally required, in each case it will be necessary to comply with the following extremes:

b) In the case of cancer:It will also be necessary to prove that the child of the official suffers from cancer.

(c) In the case of serious illness:

It will be necessary to prove the nature of “serious illness” through the report that will be issued for this purpose by the Public Health Service or health administrative body of the corresponding Autonomous Community.

If the minor is included as a beneficiary in the Special Regime of Administrative Mutualism, in this case, the accreditation of the “serious illness” will be made by means of a report of the doctor of the Entity or of the Public Health Service of the Autonomous Community corresponding to the one to which the minor is attached for health care purposes.

In any case, the optional report that is issued must expressly state the nature of “serious illness”.

It should be recalled, as already indicated in point 1, that Royal Decree 1148/2011, of 29 July, for the application and development, in the Social Security system, of the financial benefit for care of minors affected by cancer or another serious disease, does not apply to either of these two cases.

4) Means of accreditation of the required requirements:

The requirements required for the granting of the permit, in both cases, may be accredited by any valid means admitted in law.

However, in any case, it must be stated through the corresponding medical report:

or the existence of cancer,

or the character of “serious illness”,

or the fact that the child needs direct, continuous and permanent care of his or her parent.

5) Duration and termination of the permit:

The duration of the permit provided for in article 49.e) of the TRLEBEP is different if it is a case of cancer or serious illness. Thus:

a) In the case of cancer:The permit, in the case of cancer, will be granted both for the period of hospitalization and for continued treatment.

(b) In the case of serious illness:The permit, in the case of “serious illness”, will be granted both for the period of hospitalization and for continued treatment.

Likewise, as established by the Higher Commission of Personnel at its meeting of March 20, 2013, regarding the requirement of “Long-term admission”, once the disease has been diagnosed, and without it being necessary in any case that the prolonged hospital admission concurs, permission may also be granted provided that it is proven, in the terms indicated generally, that the disease is at a time when the minor requires direct, continuous and permanent care, either because he is receiving medical treatment; or, because the phase in which the disease is found requires it.

Without prejudice to the specificities applicable to the duration of each case, in any case, the permit will be extinguished because the cause that generated its concession disappears, or when the minor reaches the age stated in the precept.

6) Reduction of the working day.

Article 49.e) of the TRLEBEP has the character of basic legislation, so it is a precept that has to be developed by the corresponding Public Service legislations.

However, while such development regulation is in place, the following extremes must be taken into account:

- The reduction must be at least half of the day. Where applicable, the development legislator may set a maximum limit to the percentage of such reduction.

- As long as the maximum reduction limit has not been established, each Administration may, in an optional manner, taking into account the different circumstances that exist in each case, as well as weighing the different interests involved, exceptionally, raise the aforementioned reduction above half the working day already provided for by law, but, in order to ensure that the permit is not reversed, the agreed reduction must make it possible to attend, at least in a minimal and effective manner, to the provision of the service that the official has been developing.

- The possibility of accumulating the reduction in full days provided for in the article will not be possible until its regulatory development takes place.

7) Remuneration of the permit.

The permit provided for in Article 49.e) of the TRLEBEP for civil servants shall be paid solely and exclusively from Chapter 1 of the expenses of the budgets of each Ministerial Department or Agency, without any benefit being applied from the corresponding Social Security System.

8) Concurrence of parents.

If for the same subject, two parents, adoptive parents, or foster parents of a pre-adoptive or permanent nature, were entitled to the permit provided for in article 49.e) of the TRLEBEP or, where appropriate, may have the status of beneficiaries of the benefit established for this purpose in the Social Security System that is applicable to them, in this case, the official may choose:

or to enjoy the said permit with the full collection of their remuneration, in which case they must prove that the other parent, adoptive or foster parent does not receive their full remuneration or the financial benefit provided for that purpose in the General Social Security Law;

or, to enjoy the aforementioned permit but receiving only the remuneration proportional to the effective working day; in which case, the other parent may receive his or her full remuneration or the financial benefit provided for that purpose in the General Social Security Law.

On the other hand, in the event that both parents, adoptive parents, or foster parents of a pre-adoptive or permanent nature, provide services in the same Body or Entity, the simultaneous exercise of this right may be limited, by means of a reasoned resolution that bases the refusal on the safeguarding of the proper 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.