The leave due to force majeure under Article 37.9 of the Workers’ Statute has raised an important question since its introduction: whether absences for urgent family reasons must necessarily be paid, or whether such payment depends on what is provided in the collective bargaining agreement, a company agreement or the company’s own interpretation of the provision.
This is not a minor issue. This leave allows employees to be absent from work when urgent family reasons arise in relation to relatives or persons living in the same household, in cases of illness or accident, where the employee’s immediate presence is indispensable. The Workers’ Statute recognises this right for the hours equivalent to four days per year.
The judgment of the Supreme Court of 17 April 2026, appeal no. 111/2024 has resolved the controversy with a clear criterion: leave due to force majeure under Article 37.9 of the Workers’ Statute is paid by operation of law. The collective bargaining agreement or company agreement doesn’t need to recognise it expressly.
The origin of the dispute
The case examined arose from a company’s decision to recognise the four-day force majeure leave, but without pay. The company based its position on Directive (EU) 2019/1158 on work-life balance for parents and carers, which regulates force majeure leave without expressly requiring Member States to remunerate it.
On that basis, the company considered that it could grant the leave without paying salary during the hours of absence. The trade unions challenged that interpretation, arguing that Spanish law had configured the leave as paid.
The debate, therefore, was not about the existence of the leave but about its financial nature. The question was whether the company could directly apply a minimal reading of the European Directive or whether it had to follow the option adopted by the Spanish legislature when transposing the rule.
The European Directive and the option adopted by the Spanish legislature
European directives establish minimum objectives that Member States must incorporate into their domestic legal systems. In employment matters, that transposition may generate tensions when Spanish law introduces nuances, expands rights or uses a legislative technique different from that of the European framework.
In this case, the Supreme Court considers that Spanish law went beyond the minimum standard provided for in the Directive. Although the Directive does not expressly require remuneration for force majeure leave, nor does it prevent Member States from recognising higher protection.
Indeed, the European framework itself encourages States to introduce remuneration or financial benefits for care-related leave, to ensure that these rights can be exercised effectively. This interpretation is connected to the purpose of Directive 2019/1158: to promote work-life balance, encourage shared responsibility and prevent family leave rights from being emptied of content for economic reasons.
The Spanish legislature chose to configure the leave under Article 37.9 of the Workers’ Statute as a paid right. According to the Supreme Court, that choice is binding on companies.
The Supreme Court’s criterion
The Social Chamber concludes that force majeure leave under Article 37.9 of the Workers’ Statute must be paid for the hours of absence equivalent to four working days per year. Its paid nature derives directly from the law, without the need for collective bargaining development or express recognition by the company.
This criterion has an important practical consequence: collective bargaining may regulate management aspects of the leave, such as how it is requested, how it is justified, the internal procedure or certain elements of implementation. However, it cannot deprive the right of its remunerative content or convert into unpaid leave a right that the law recognises as paid.
The Supreme Court thus confirms that Article 37.9 of the Workers’ Statute does not establish a mere authorisation to be absent from work, but a paid employment leave that must be applied as a statutory minimum.
What situations does the leave cover
Force majeure leave does not cover every work-life balance need or every family-related incident. Its application requires a specific cause: urgent family reasons relating to relatives or persons living in the same household, arising from illness or accident, which make the employee’s immediate presence indispensable.
This clarification is relevant for companies. The fact that the leave is paid does not mean that it must be granted automatically in response to any request. The company may require reasonable justification of the cause, provided that such a requirement is proportionate and does not prevent the effective exercise of the right.
The analysis must focus on urgency, the family or cohabitation connection, the existence of illness or accident and the need for immediate presence. If those elements are met, the absence must be treated as paid leave within the statutory limit of four days per year.
Impact for companies
The judgment requires companies to review their internal criteria for managing urgent family leave. Companies that had been applying Article 37.9 of the Workers’ Statute as unpaid leave must adapt their practice, internal policies and, where applicable, payroll systems.
It is also advisable to review collective bargaining agreements, company agreements, absence protocols and internal communications addressed to the workforce. Any instruction configuring this leave as unpaid may generate salary claims, collective disputes or inspection risks.
The impact is not limited to the payment of the salary corresponding to the hours of absence. Incorrect management of the leave may affect the relationship with employee representatives, the consistency of work-life balance policies and the legal certainty of internal Human Resources processes.
Practical criterion for Human Resources
The company must start from a clear rule: if the absence falls within Article 37.9 of the Workers’ Statute, the leave is paid. From there, the company’s margin lies in properly managing the right, not in denying its remuneration.
It is advisable to define internally how the leave must be requested, which channels should be used, what documentation may be required and how the hours used are recorded. It is also advisable to train middle managers and team leaders, as many of these situations are communicated urgently and directly before formally reaching Human Resources.
The balance lies in avoiding two risks: wrongly denying a legally paid leave or applying the leave without any control over its requirements. Legal certainty requires a clear, proportionate policy aligned with the Supreme Court’s interpretation.
Frequently asked questions
Is force majeure leave under Article 37.9 of the Workers’ Statute paid?
Yes. The Supreme Court has held that it is paid by operation of law, without the need for it to be expressly provided for in the collective bargaining agreement or company agreement.
How many days does this leave to cover?
The leave covers the hours of absence equivalent to four days per year, provided that the requirements set out in Article 37.9 of the Workers’ Statute are met.
Can the company require justification?
Yes. The company may request reasonable justification of the cause, provided that the requirement is proportionate and compatible with the urgency inherent in the leave.
Does the European Directive require this leave to be paid?
Directive 2019/1158 does not expressly require remuneration for force majeure leave, but it allows Member States to establish higher protection. Spain has chosen to configure this leave as paid.
Can the collective bargaining agreement establish that it is unpaid?
No. According to the Supreme Court’s criterion, its paid nature derives directly from the law. Collective bargaining may regulate management aspects, but it cannot remove the remuneration for leave.
Employment advice on leave and work-life balance policies
The management of employment leave requires legal precision and clear internal criteria. An incorrect interpretation may generate salary claims, collective disputes and risks in the day-to-day application of Human Resources policies.
At Suárez de Vivero, we have a team specialised in Employment Law that advises companies on the review of paid leave, work-life balance policies, collective agreements and the prevention of employment risks arising from the internal management of absences.
Contact our team to receive specialised advice and reinforce the legal certainty of your employment decisions.
