Possibility of suspending the permit by birth, adoption, custody for adoption or fostering purposes, or permission of a parent other than the biological mother for an illness that has occurred.

The consultation is about the possibility of suspending the permits for birth, adoption, foster care, temporary or permanent, or parental leave other than the biological mother for an illness resulting in a situation of temporary incapacity.

Article 49 of Royal Legislative Decree 5/2015, of 30 October, approving the consolidated text of the Law on the Basic Status of Public Employees (hereinafter TRLEBEP) includes, among others, the permits that for reasons of reconciliation of personal, family and working life. Specifically, article (a) of the aforementioned article provides: that the birth permit for the biological mother “will last for sixteen weeks, of which the immediate six weeks after delivery will in any case be mandatory and uninterrupted rest.”

Article 49.b) of the TRLEBEP, which refers to permission for adoption, for guardianship for the purpose of adoption, or for foster care, both temporary and permanent, states that “It will last for sixteen weeks. Six weeks must be enjoyed on a full-time basis on a mandatory and uninterrupted basis immediately after the judicial decision establishing the adoption or the administrative decision of custody for the purposes of adoption or fostering.”

Finally, the permission of the parent other than the biological mother by birth, guardianship for the purpose of adoption, fostering or adoption of a child is pronounced in the same terms by establishing that such permission “will have a duration of sixteen weeks of which the six weeks immediately following the event will in any case be mandatory rest.”

Thus, under the provisions of article 49 of the TRLEBEP, public officials shall have the right to the enjoyment of permits for birth, adoption, custody for the purpose of adoption or fostering for sixteen weeks without interruption, of which the six weeks immediately following the event shall be a mandatory rest period for officials.

However, the current regulations do not provide for the possibility of carrying out the suspension of such permits due to temporary incapacity.

However, article 49 (a) of the TRLEBEP, concerning the birth permit of the biological mother, provides that: “In the event that both parents work and after the first six weeks of compulsory rest, the period of enjoyment of this leave may be carried out at their will, interrupted and exercised from the end of the compulsory rest after childbirth until the son or daughter reaches twelve months. In the case of interrupted enjoyment, a notice of at least 15 days will be required for each period of enjoyment and will be carried out for full weeks.”

Articles 49 (b) and 49 (c) of the TRLEBEP on adoption permits, custody for adoption or foster care, and parental leave other than the biological mother by birth, custody for adoption, foster care or adoption are the same.

That is, once the six weeks of compulsory rest have elapsed, in the event that the leave is granted on an interrupted basis, in the event of a new temporary incapacity or if a temporary incapacity initiated in the six weeks immediately following the event persists, the official may decide to interrupt his or her leave in order to move from then to the situation of temporary incapacity.

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.