Voluntary and Family Leave in Spain: Your Right to Return

🇪🇸 Read the original in Spanish

Voluntary or family leave (excedencia laboral) is one of the most complex and, at the same time, most widely used concepts in Spanish labor law. It allows for the suspension of an employment contract, exempting the employee from working and the company from paying their salary and social security contributions, without permanently breaking the employment relationship. However, the popular belief that "taking a leave of absence guarantees you get your job back" is one of the most widespread and dangerous misconceptions for any worker's career. In this article, we will analyze in depth the types of leave that exist under Spanish legislation, what your actual rights are regarding reinstatement, and how to request it step-by-step to avoid losing your job.

What is excedencia laboral and where is it regulated?

An excedencia laboral (employment leave of absence) is a ground for the suspension of an employment contract. Its primary regulation is found in Article 46 of Royal Legislative Decree 2/2015, of October 23, which approves the consolidated text of the Workers' Statute Law (hereinafter, Estatuto de los Trabajadores or ET).

During the leave period, the employment relationship is "frozen". The worker is not entitled to receive their salary, nor is the company obliged to pay social security contributions for them (except in specific cases of family care leave, where simulated effective contribution periods exist under the Ley General de la Seguridad Social / General Social Security Law).

The legal key to this leave lies in the right of return (derecho de retorno), which varies drastically depending on the type of leave requested. Taking voluntary leave to try your luck at another company is not the same as taking leave to care for a child.

Types of excedencia laboral in Spanish Law

The Estatuto de los Trabajadores classifies leaves of absence into three major categories, each with completely different requirements, durations, and reinstatement rights.

1. Excedencia voluntaria común (Common voluntary leave)

This is the most common type and the one that generates the most legal disputes. It is requested for the worker's personal interest (studying, starting a business, resting, or working for another company).

• Access requirements: The worker must have at least 1 year of seniority (antigüedad) with the company.
• Duration: It can be requested for a period of no less than 4 months and no more than 5 years.
• Time limit: This right can only be exercised again by the same worker if 4 years have passed since the end of their previous voluntary leave.
• Right to reinstatement: It is a preferential right of return (derecho preferente de reingreso). The worker does not have a guaranteed reservation of their specific job post. They only have a preferential right to occupy a vacancy of an equal or similar category to theirs if one exists at the moment they request reinstatement.

2. Excedencia por cuidado de familiares (Family care leave)

This leave has a strong social and family-work balance character. It is divided into two scenarios:

• Childcare: To care for each child, whether by birth, adoption, or in cases of guardianship for the purpose of adoption or permanent foster care. The maximum duration is 3 years, counting from the date of birth or the judicial ruling.
• Care of other relatives: To care for a relative up to the second degree of consanguinity or affinity (parents, grandparents, siblings, children, grandchildren, spouse, parents-in-law, siblings-in-law) who, due to age, accident, illness, or disability, cannot look after themselves and do not engage in paid activity. The maximum duration in this case is 2 years (unless the Convenio Colectivo / Collective Bargaining Agreement extends this period).
• Right to reinstatement: During the first year, the worker has the right to have their exact job post reserved. If the worker is part of a familia numerosa (large family), this reservation can be extended up to 15 months (general category) or 18 months (special category). Once this period has elapsed, the reservation is limited to a job post within the same professional group or equivalent category.

3. Excedencia forzosa (Compulsory leave)

This must be granted mandatorily by the company in very specific cases determined by law.

• Causes: Appointment or election to a public office that makes attendance at work impossible, or to perform union functions at a provincial level or higher.
• Duration: For as long as the representative office is held.
• Right to reinstatement: The worker retains an absolute and immediate right to return to their job post and to have the time count toward their seniority. Reinstatement must be requested within the month following the termination of the public or union office.

The right to reinstatement: The major legal distinction

The critical point of any leave of absence is the return to work. The jurisprudence of the Spanish Supreme Court (Tribunal Supremo) has clearly defined the effects of each type of leave on a worker's employment.

Reinstatement after voluntary leave (An expectant right)

Under voluntary leave, the worker does not have a guaranteed job reservation. Their right is "potential" or "expectant" (derecho expectante). This means that:

1. If, when requesting reinstatement, there is a vacancy in their category, the company is obliged to readmit them.
2. If the company has no vacancies, it can temporarily deny reinstatement. The contract remains suspended until a vacancy arises.
3. If the company responds that it will not readmit them because the position no longer exists or has been eliminated, but the worker suspects this is a disguised dismissal, they must file a lawsuit for dismissal (demanda por despido) within 20 business days from the refusal.

Reinstatement after family care leave (A reserved right)

Here, the right is absolute during the first year. The company is obliged to keep the exact job post open. To cover the absence, the company usually uses temporary replacement contracts (contratos de interinidad). If the worker does not return at the end of the year, their right shifts to a position within the same professional group, but not necessarily the exact same desk or duties.

Practical steps: How to request leave and reinstatement step-by-step

To prevent a formal mistake from resulting in a loss of your rights, follow these steps rigorously:

Phase 1: Requesting the leave of absence

1. Drafting the written request: Prepare a formal application letter addressed to the Human Resources department or the company management. It must state the date of the request, the type of leave, the exact start date, and the exact end date.
2. Notice period: Although the Estatuto de los Trabajadores does not set a specific notice period, jurisprudence and most Convenios Colectivos require 15 days' advance notice.
3. Wait for written authorization: Never stop going to work without having written confirmation from the company accepting the leave. If you leave before receiving the signed approval, the company could dismiss you for abandoning your post (justified disciplinary dismissal, without severance pay or unemployment benefits).

Phase 2: Requesting reinstatement

1. Drafting the reinstatement request: Before the leave period ends, you must formally communicate your intention to return.
2. Notice period to return: It is recommended to send the request at least 30 days prior to the end date of your leave (or the notice period specified in your Convenio Colectivo).
3. Secure delivery: Send the request using a method that provides proof of both content and delivery, such as a burofax (a certified secure fax service) with acknowledgment of receipt and text certification, or hand-deliver it and get a stamped copy from the company.

Practical examples with real figures

Example 1: Carlos's voluntary leave

Carlos works as a software developer in Madrid with a gross monthly salary of €2,500 and 3 years of seniority at his company. He decides to request a voluntary leave of 12 months to pursue a personal entrepreneurial project.

• Process: Carlos submits his request 15 days in advance. The company approves it. During those 12 months, Carlos does not receive a salary, nor does the company pay social security contributions for him.
• Reinstatement: At 11 months, Carlos sends a burofax requesting his reinstatement. The company responds in writing that there are currently no vacancies in his category (software developer) due to internal restructuring.
• Legal outcome: Carlos's contract remains suspended. He is not dismissed, meaning he is not entitled to severance pay or unemployment benefits (paro) at that moment, as the employment relationship has not been terminated. He must wait for a vacancy to open up or look for work at another company (which is legal, as voluntary leave does not require a non-compete agreement unless one was expressly signed).

Example 2: Laura's childcare leave

Laura is an administrative assistant in Valencia, earning a gross salary of €1,400 per month. She has just given birth and, after exhausting her 16 weeks of maternity leave and accumulated breastfeeding hours (lactancia acumulada), she requests a childcare leave of 10 months.

• Process: She requests the leave, indicating the exact dates. Since it is for the care of a child under 3 years old, the company is legally obliged to grant it.
• Reinstatement: One month before the end of the 10 months, Laura requests her reinstatement. Since she is within the first year from the start of the leave, Laura is entitled to get her exact same job post back, with her same salary of €1,400 and her same duties. If the company refuses, Laura can immediately sue for null and void dismissal (despido nulo).

Mistakes you must avoid

• Going on leave without express, written approval from the company: Simply submitting the request does not grant you an automatic right (except for family care leave, but even then, it requires formal communication and receipt). If you stop going to work without a signed document, you risk being dismissed for unjustified absences.
• Failing to request reinstatement within the established deadline: If you are on voluntary leave and let the end date pass without having formally requested reinstatement in writing, you will permanently lose all your labor rights, and it will be treated as a voluntary resignation (baja voluntaria).
• *Thinking you are entitled to unemployment benefits (paro) at the end of voluntary leave: If you request reinstatement and the company tells you there are no vacancies, you enter a legal "limbo". You are not dismissed, so you cannot claim unemployment benefits from the SEPE (State Public Employment Service), unless you find another temporary job, that job ends for reasons beyond your control, and you then claim your accumulated paro*.
• *Signing a settlement agreement (finiquito) when starting your leave: When your leave begins, the company can settle your accrued but unused paid leave and the proportional part of your extra payments (pagas extras*), but you must not sign a contract termination or waiver of rights document. It must be clear that this is a suspension of the contract, not a termination.

Frequently Asked Questions (FAQ)

Can I work for another company while on leave?

Yes, it is perfectly legal to work for another company during a voluntary or compulsory leave. The only restriction is that you must not engage in unfair competition against your original employer, or have previously signed an exclusivity or non-compete agreement with financial compensation. Under family care leave, working elsewhere can be grounds for losing your leave rights if the new job prevents you from performing the caregiving duties that justified the leave.

Does the leave period count toward my seniority?

It depends on the type of leave. Under voluntary leave, the time you spend away does not count toward seniority (for salary increases, calculation of dismissal severance pay, etc.). Conversely, under childcare or family care leave, the time elapsed does count fully toward seniority, and you retain the right to attend professional training courses organized by the company.

What happens if the company ignores my reinstatement request?

If you send a burofax requesting reinstatement and the company does not respond, this silence is legally treated as a tacit refusal. You must file a labor conciliation petition (papeleta de conciliación) and, subsequently, a lawsuit before the Social Courts (Juzgados de lo Social). The deadline to sue for dismissal is 20 business days from the day you should have been reinstated but were not allowed to, or from the moment you became aware of the refusal.

Can I extend a leave of absence that has already been granted?

Yes, provided you do not exceed the maximum legal limits (5 years for voluntary leave, 3 years for childcare) and the applicable Convenio Colectivo allows it, or the company agrees to it. You must request the extension before the initially granted period ends. The company is not obliged to accept an extension in the case of voluntary leave, unless regulated by the Convenio.

Summary

• Voluntary leave requires 1 year of seniority with the company and lasts between 4 months and 5 years.
• Under voluntary leave, you do not have a guaranteed reservation of your job post, only a preferential right if vacancies in your category exist.
• Childcare leave (maximum 3 years) and family care leave (maximum 2 years) do guarantee your job post reservation during the first year.
• It is mandatory to request reinstatement in writing (preferably via burofax) before the leave period expires.
• If the company unjustifiably refuses to readmit you by claiming there are no vacancies, or terminates your position, you must sue for dismissal within 20 business days.

General legal information, not personalised legal advice. For your specific situation, ask your question for free at AbogadoAI — answers grounded in Spanish law (BOE), in English.

This is general information, not legal advice. Verify on the BOE or consult a lawyer for your specific case.