Recent developments in Spanish labor law underscore two important areas where employers must act with caution: parental leave rights for employees with children under the age of 8, and the treatment of employees on sick leave in workplace policies and benefit eligibility.
With legal interpretations evolving rapidly, and courts beginning to shift responsibility directly onto employers in certain areas, it is critical that HR departments review their policies and practices now to stay ahead of compliance risks.
1. New Legal Landscape: Parental Leave for Children Under 8
Since June 28, 2023, Spanish legislation (Article 48 bis of the Workers’ Statute) has recognized a new right: up to eight weeks of unpaid parental leave to care for a child or foster child until they reach the age of eight. This right, derived from Directive (EU) 2019/1158, can be exercised continuously or intermittently and is initiated by the employee, who sets the start and end dates.
Notably, while the Directive clearly requires this leave to be paid, Spanish law has so far failed to implement this key provision. As a result, most companies treat such leave as unpaid, and employees make limited use of the right.
However, this position may now be challenged.
Key Development: Judgment from the Social Court of Barcelona
In a June 30, 2025, ruling (Judgment No. 168/2025), the Social Court No. 1 of Barcelona declared that parental leave under Article 48 bis must be paid, even though Spanish law currently does not require it.
The decision rests on the argument that Spanish courts must interpret national law in line with EU directives. However, this ruling represents a departure from the principle of regulatory hierarchy and shifts accountability from the State to individual companies.
While an appeal is expected, and higher courts may reverse this interpretation, the judgment opens the door for employees to begin requesting paid parental leave, citing EU law directly.
What Employers Should Expect
- Increased employee requests for paid parental leave, even before national law is updated.
- Legal uncertainty, as case law develops and potentially conflicts with current legislation.
- Potential need to revise internal leave policies, at least provisionally, to reduce litigation risk.
In practice, we recommend that employers prepare a legal strategy for managing such requests until the status of the Barcelona ruling is confirmed at higher levels.
2. Sick Leave and Discriminatory Practices: The Impact of Law 15/2022
A second critical issue relates to how employee absences due to health issues are treated within workplace policies, particularly regarding eligibility for bonuses, promotions, or special benefits.
The Supreme Court judgment of May 6, 2025 (Rec. 149/2023) upheld a policy in which employees were excluded from certain benefits if they had absences totaling 90 days or more including those related to sick leave, childcare, or union representation.
While the Court found the exclusion of sick leave to be legal under prior rules, there is now a new standard.
Law 15/2022: Health as a Protected Ground
Law 15/2022, which entered into force after the case in question, introduces health status as a protected characteristic. This legislative change means that any adverse treatment of employees due to illness, such as excluding them from variable remuneration due to sick leave, may now be considered discriminatory.
Key Risk Factors for Employers
- Policies that penalize employees for legitimate medical leave may now violate anti-discrimination laws.
- Automatic exclusion from bonuses or benefits based on days absent due to illness could lead to legal action.
- Even indirect discrimination, where a policy appears neutral but disproportionately impacts individuals with health issues, may be subject to legal challenge.
Recommendations for Employers
To reduce exposure and ensure lawful compliance with evolving case law and EU standards, we recommend the following actions:
- Review internal leave and benefits policies for alignment with Law 15/2022 and EU Directive 2019/1158.
- Clearly separate non-discretionary medical absences from other types of leave when setting bonus or promotion criteria.
- Avoid conditioning employee rights on factors that may now be considered discriminatory under current law.
- Prepare for increased parental leave claims, including requests for pay that cite the recent Barcelona judgment.
How Suárez de Vivero Can Help
As legal interpretations evolve, it’s essential for employers to stay proactive. Our team advises national and international companies on all aspects of Spanish labor law, including:
- Drafting compliant leave and benefits policies
- Managing leave requests and employee disputes
- Adapting corporate practices to EU and national legal developments
- Defending clients in labor court proceedings
We are closely monitoring new rulings and legislative updates and can help you navigate the shifting landscape of employee rights in Spain.
Contact us for more information.