Understanding Incapacity and Vacation Rights in Spain: A Guide for Expats

For expats living and working in Spain, navigating the complexities of Spanish labor laws, especially when it comes to health and employment, can be daunting. A recent clarification on the rights of workers declared with permanent incapacity has shed light on an important aspect: the treatment of unused vacation days.

The Scenario: Incapacity and Vacation Days

When a worker is declared with permanent incapacity, it often follows a lengthy period of temporary incapacity, during which the individual may not have been able to enjoy their annual leave. According to Spanish labor law, workers who are on temporary sick leave for extended periods, such as the 18 months required before applying for permanent incapacity, do not lose their right to these unused vacation days.

Rights to Unused Vacation Days

Abogado Pedro López de Cerro, an expert in disability and labor law, explains that workers retain their right to these vacation days even after the contract is terminated due to permanent incapacity. There are two primary scenarios:

• Contract Termination: If the worker decides not to continue with the company, the employer must include the payment for these unused vacation days in the final settlement (finiquito). This ensures that the worker receives full compensation for all accrued but unused leave.
• Continuation with Adaptations: If the worker chooses to remain with the company, albeit with necessary adaptations to their role, they still have the right to take these vacation days. The company is obligated to facilitate this, ensuring the worker can enjoy the leave they have accrued[1].

Protection Against Unlawful Dismissal

It is crucial to note that being on sick leave, even for extended periods, does not constitute grounds for dismissal under Spanish law. Recent reforms, including those introduced by Royal Decree-Law 4/2020, have reinforced this protection. An employer cannot dismiss an employee solely because they are on sick leave. However, dismissals can still occur for other valid reasons such as economic, technical, or disciplinary grounds[2].

Financial and Legal Implications

When a worker's contract is terminated due to permanent incapacity, the employer is responsible for paying the finiquito, which includes several components: - Salaries and Extras: Any pending salaries and proportional extra payments. - Vacations: The payment for all unused vacation days. - Other Benefits: Depending on the collective bargaining agreement or individual contract, other benefits may also be included[3].

Recent Legal Clarifications

The Spanish government has made significant changes to the workers' statute, eliminating the automatic termination of employment contracts due to permanent incapacity. Instead, the decision to continue working or not rests with the worker. If the worker chooses to continue, the employer must make necessary adaptations to the job. If adaptation is not possible, the employer must offer another suitable position within the company[3].

Conclusion

For expats in Spain facing health issues that may lead to permanent incapacity, it is reassuring to know that their rights to unused vacation days are protected. Understanding these rights and the legal framework surrounding them can help navigate what can be a complex and challenging period. Whether the worker decides to leave the company or continue with adaptations, they are entitled to full compensation for their accrued leave, ensuring they do not lose out on the benefits they have earned.