How to compute the four annual days of illness excluded from the reduction of remuneration.

The consultation is about the calculation of the days of absence due to illness or accident in the calendar year to which the remuneration deduction provided for in Law 17/2012, of December 27, on General State Budgets for the year 2013 does not apply.

Order HAP/2802/2012, of 28 December, which develops for the State Administration and the bodies and entities of public law dependent on it, the provisions of the thirty-eighth additional provision of Law 17/2012, of 27 December, on General State Budgets for the year 2013, regarding absences due to illness or accident that do not give rise to temporary incapacity is intended to regulate the number of days of absence due to illness or accident in the calendar year to which the discount on payroll provided for in the thirty-eighth provision of Law 17/2012 does not apply.

Both refer to “days of absence from work.” As is evident, this is an event that can only be raised regarding working days for the interested party. Therefore, it would not be possible to take into consideration an intermediate non-working day between two working days of absence due to illness, for the purposes of the provisions of the aforementioned regulations, since it is not possible to speak of absence from work on a non-working day. For this reason, it is considered that the calculation of the set of days excluded from reduction in remuneration should not include intermediate working days.

Thus, if a public employee does not go to his place of work on a Tuesday due to justified illness, Wednesday is a public holiday, and on Thursday he does not go to his place of work due to illness, but rejoins on Friday, it can be concluded that he has exhausted only two of the four days of annual absence without deduction of remuneration provided for in the regulations, since the intermediate holiday was not counted, since it was not a day of absence to work since this is not a working day.

However, this does not affect the calculation of deadlines when it is appropriate to declare a temporary incapacity, since, in that case, according to the Social Security regulations themselves, intermediate non-working days are not excluded. Thus, if a public employee does not go to work on a Friday because of illness and does not go to work on the following Monday for the same reason, the question is no longer how many days without pay deduction has expired, but, since Monday is the fourth day since the beginning of the illness, that Monday must already be covered with a part of leave, without being able to use one of the two days of absence due to illness without temporary incapacity, since otherwise, the regulations governing this situation would be violated.

These days of lack of work, if no part of leave is presented that covers them, must give rise to the application of the regulations on proportional reduction of remuneration for non-compliance with working hours and hours.

On the other hand, if the same public employee after missing work on Friday joins on Monday, justifying that the absence of Friday was due to illness, since he has only been absent from his job one working day, he would have exhausted only one of the four days provided for in the Ministerial Order, and if he had already exhausted those days, a 50% discount would be applied to his remuneration for that single day.

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.