Issues relating to the reduction of working hours for family care due to illness

The issue raised concerns the permit to reduce working hours by up to fifty percent of working hours due to the care of a family member with a very serious illness. In particular, the consultation focuses on how to determine what percentage of reduction of the working day corresponds to each case and how the weighting of the public and private interest should be carried out.

In the first place, the legal framework for implementation must be analysed. Article 48.i) of the consolidated text of the Law on the Basic Status of Public Employees, approved by Royal Legislative Decree 5/2015, of 30 October (TREBEP), establishes that:

“As it is necessary to take care of a first-degree relative, the official will have the right to request a reduction of up to fifty percent of the working day, on a remunerated basis, for reasons of very serious illness and for a maximum period of one month. If there is more than one holder of this right for the same causative act, the time of enjoyment of this reduction may be prorated among them, respecting in any case, the maximum period of one month.”

Thus, the causative fact for the granting of such permission is the very serious illness of a relative in the first degree of consaguinity or affinity, which can be granted only once for each pathological process. The duration of the leave will be a maximum of one month, without prejudice to its anticipated conclusion in those cases in which the medical discharge or death of the family member occurs.

It should also be noted that, in order to be eligible for this permit, applications must be accompanied by the following documentation:

a) Document that proves the relationship of consanguinity or affinity in the first degree.

b) Certificate issued by the Official Medical Service that corresponds to the patient according to his Social Security System, in which the very serious illness of the family member is accredited.

Taking into account the above, the first issue to be resolved is related to the origin of the granting of this permit. Thus, Article 48(h) refers only as a causative fact to the very serious illness of a relative. With regard to the interpretation of the term “very serious illness”, it is pointed out that the competent body, in the light of the medical report that qualifies the severity of the illness, will decide in a reasoned manner whether or not to grant the abovementioned reduction of working hours permit.

In this regard, and in order to facilitate the adoption of the corresponding resolution, it will be advisable to inform the official that the report contains the optional opinion on the seriousness of the disease.

The second question is about the extent of the reduction, that is, what percentage of working time should be reduced. In determining the reduction in working hours, it is necessary to take into account that general interests must always prevail over private individuals, and therefore continuity and guarantee in the effective provision of public service must take precedence over a reduction in working hours that may be detrimental to or detrimental to the general interests and rights of citizens. This must always be done with due respect for the right to reconcile family and professional life.

In this sense, judgment of the TSJ Castilla y León (Burgos) (Contencioso), sec. 2nd, S 23-12-2013, No 478/2013, rec. 49/2013:

“Well, neither of the two norms subordinates, as could not be otherwise, the adequate provision of the service to the choice of the staff member’s schedule, but they make possible and even impose as a criterion for the organization of the same the necessary conciliation with the needs derived from family life; in any case without losing sight, as we say, of the prevalence of the needs of the service.

(…)

The rules invoked by the same claimant therefore show that the possibility of choosing a schedule is necessarily limited by the needs of the service, and such needs, contrary to what is stated in the claim, have been explained in the Resolution that is appealed.”

Therefore, the competent body, in accordance with the needs of the service, will carry out the determination of the corresponding reduction of the working day, safeguarding the general interest entrusted and the provision of the public service.

In this sense, the reduction of working hours, in general, must take place on a continuous basis, since a reduction that involves the provision of the service intermittently within the ordinary working day could result in the services being neglected or even the interruption thereof.

All this without prejudice to the fact that, if there is more than one holder of this right for the same causative act, the time of enjoyment of this reduction may be prorated among them, respecting in any case, the maximum period of one month.

Finally, the third issue is related to the possibility of accumulating the permit in full days. In this regard, it should be noted that the leave to care for a family member in the first degree for very serious illness consists of a reduction in working hours of up to fifty percent, so it is not possible to accumulate it in full working hours since this possibility is not expressly provided for in the norm.

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.