If you want to review your specific case regarding breastfeeding leave in Spain 2026, you can contact Fernanda Vargas, employment lawyer in Madrid, via WhatsApp or book an appointment on Calendly. Although people still colloquially refer to it as breastfeeding leave, employment law refers to it as leave for the care of a nursing infant, and it is important to clearly understand its different forms, how it is calculated, and what to do if the company raises objections.
What Leave for the Care of a Nursing Infant Is and Who Is Entitled to It in 2026
In 2026, the rules on leave for the care of a nursing infant under the Workers’ Statute (Estatuto de los Trabajadores) remain in force, with no identified changes to this leave compared with 2025. It is recognized in cases of birth, adoption, pre-adoption foster care, or foster care.
The general rule is clear: workers are entitled to one hour away from work to care for the nursing infant until the child is 9 months old. That hour may be split into two parts. In addition, in cases of multiple birth, adoption, foster placement for adoption, or foster care, the duration is increased proportionally.
This right is individual and non-transferable. This means it does not belong to only one person in the couple and is not used up because the other parent takes it: each worker who holds the right may exercise it on their own terms.
It is also important to distinguish between two periods. Up to 9 months, this leave is paid by the employer. If it is later extended to 12 months, the rules change, as we will see in a specific section.
In practice, this leave is especially relevant after returning to work, because it makes it possible to adjust time for childcare without having to give up work altogether. If you need help claiming it or arranging it properly, Fernanda Vargas offers employment law advice.
The Three Options: One Hour a Day, a Half-Hour Reduction, or Accrual Into Full Working Days
The law allows leave for the care of a nursing infant to be taken in three ways. These are not different rights, but three ways of exercising the same right.
| Option | How it works | Practical idea |
|---|---|---|
| One-hour absence | One hour away from work, which may be split into two parts | Useful when the person wants to distribute the time within the working day |
| Half-hour reduction of working hours | The one-hour absence is replaced by a half-hour reduction | It may make it easier to start or finish a little earlier or later, depending on the chosen scheduling arrangement |
| Accrual into full working days | The hours are grouped together to be taken as full days | Usually of interest when the person prefers to extend continuous childcare time after returning to work |
The choice between one option and another should not be made out of habit, but by looking at the actual work calendar, the daily schedule, and family organization. For example, a person with a regular schedule may prefer accrual; another with a daily work-life balance need may prefer the absence or the reduction.
In any event, the specific scheduling and the determination of the period of leave correspond to the worker within their ordinary working hours. This rule is important because it prevents the employer from turning the right into something purely discretionary.
Accruing Breastfeeding Leave Into Full Days: a Right Without a Collective Agreement Since RDL 2/2024 and How to Calculate the Days
One of the most significant changes is that accrual into full working days no longer depends on whether it is provided for in the collective bargaining agreement (convenio colectivo) or agreed with the employer. Since the entry into force of Royal Decree-Law 2/2024, accruing breastfeeding leave into full working days is a worker’s right.
This has simplified many practical disputes. If some employers previously challenged accrual because the collective agreement did not expressly provide for it, that objection no longer fits the current legal framework.
What does not exist is a fixed legal number of accrued days that applies to all cases. The number of days varies depending on the date of return to work, the working calendar, and the daily schedule.
The usual calculation method is to add up the hours of absence corresponding from the return to work until the nursing infant reaches 9 months of age and divide that total by the daily working time. This gives the equivalent in full working days.
- First step: count the working days between the return to work and the date on which the nursing infant turns 9 months old.
- Second step: assign one hour of leave for each of those working days.
- Third step: divide the total number of hours by the length of the ordinary daily working day.
- Fourth step: convert the result into full working days and, if there is time left over, consider with the employer how to fit it into the calendar.
A classic example: if from the return to work until the child reaches 9 months there are 63 working days and the daily working day is 8 hours, the total would be 63 hours. Dividing 63 by 8 gives a result of 7 full working days and 7 hours.
That example shows why it is not advisable to accept automatic answers such as “you are entitled to X days because we always give the same here.” The correct figure depends on the specific case. In addition, if there is multiple birth, adoption, foster placement for adoption, or foster care, the duration of the right increases proportionally, and that also affects the calculation.
To avoid disputes, it is often a good idea to provide the employer with a written and clear calculation: return-to-work date, number of working days counted, daily working day, and final result. If you want that calculation reviewed before submitting it, Fernanda Vargas, employment lawyer in Madrid, can help you present it in a solid way.
Extension From 9 to 12 Months and the Benefit for Shared Responsibility in the Care of a Nursing Infant
The law allows it to go beyond 9 months, but not in every circumstance. If both parents exercise this right with the same duration and arrangement, the leave period may be extended until the nursing infant reaches 12 months of age.
However, once the child reaches 9 months, that extension entails a proportional reduction in salary. In other words, extending it from 9 to 12 months does not simply keep the same pay arrangement that existed up to 9 months.
To offset that situation, there is the benefit for shared responsibility in the care of a nursing infant. This benefit covers the half-hour reduction between 9 and 12 months when both parents reduce their working hours with the same duration and arrangement. The benefit is received by only one of them.
The amount consists of 100% of the regulatory base for temporary disability due to common contingencies, in proportion to the reduction in working hours.
There are also contribution requirements depending on the age of the applicant:
- Under 21 years of age: no minimum contribution period is required.
- Between 21 and 25 years of age: 90 days of contributions within the 7 immediately preceding years, or 180 days of contributions over the course of the person’s working life.
- Age 26 or older: 180 days of contributions within the 7 immediately preceding years, or 360 days of contributions over the course of the person’s working life.
The application is submitted to the INSS or, where applicable, the ISM, through the electronic office, by mail, or in person. Relevant documentation includes the employer certificate for each parent. The decision period is 30 days and administrative silence is negative.
An important nuance: this benefit is designed for the half-hour reduction between 9 and 12 months within the framework of shared responsibility. It should not be confused with accrued full working days taken before 9 months.
For civil servants, the applicable rules refer to article 48.f) of the TREBEP, so it is advisable to review the specific situation before filing the application.
How to Request Leave From the Employer: 15 Days’ Notice, Who Chooses the Schedule, and Request Template
The request must be made with 15 days’ notice, unless the collective bargaining agreement establishes a different period. In addition, the worker must indicate the start date and the end date.
The specific scheduling and the determination of the period of leave correspond to the worker within their ordinary working hours. This includes choosing the time slot when the option is absence or reduction, and the period during which accrued leave will be taken if that option is chosen.
Although many employers accept a simple communication by email or through their internal portal, what matters is having proof of the content and the date. In a practical request, it is advisable to include:
- Identification of the worker.
- Reference to the request for leave for the care of a nursing infant.
- Indication of whether the case involves birth, adoption, foster placement for adoption, or foster care.
- Chosen option: one hour of absence, a half-hour reduction, or accrual into full working days.
- Start date and end date.
- Where applicable, the specific scheduling within the ordinary working day.
- If there is accrual, the proposed calculation of hours and working days.
A brief template could be structured like this: notice of exercising leave for the care of a nursing infant, indication of the chosen option, requested schedule or calendar, and express mention of the legal notice period. There is no need to make it more complicated, but it should be clear and dated.
If you expect that the employer may object, it is especially advisable to review the document before submitting it. Fernanda Vargas, employment lawyer in Madrid, can help you prepare the request and clearly establish the points that may later be decisive in a claim.
Two Parents in the Same Company and Limits the Employer May Impose
When two people in the same company exercise this right for the same child giving rise to the entitlement, the employer may limit simultaneous use, but not in just any way.
The limitation is only possible for justified operational reasons and must be communicated in writing. In addition, the employer must offer an alternative plan that ensures both people can use the leave.
This means that a verbal refusal or a generic response is not enough. Nor does an automatic prohibition merely because both work in the same company fit the law. The employer’s communication must explain the organizational reason and propose a real alternative.
If the employer limits simultaneous use without sufficient grounds, without written notice, or without an alternative plan, it is advisable to review the decision as soon as possible. Many disagreements are resolved better when answered immediately and in writing.
If the Employer Denies It: Urgent Procedure Under Article 139 LRJS (20 Days) and Protection Against Dismissal
If the employer denies the leave, disputes the chosen option, or rejects the specific scheduling, the specific route is the urgent and preferential procedure under article 139 of the LRJS.
The deadline to file a claim is 20 days from the employer’s refusal. In addition, this procedure is processed without prior conciliation proceedings, which makes it possible to act quickly when the problem affects day-to-day work-life balance.
In practice, that deadline passes very quickly. For that reason, it is advisable to keep all documentation from the very beginning: the request submitted, proof of sending, the employer’s response, and any calendar or calculation provided.
In addition, there is enhanced protection against dismissal. Article 55.5.b) of the Workers’ Statute provides that the dismissal of a person who has requested or is using the leave under article 37.4 is null and void, unless the dismissal is held to be fair on grounds unrelated to the exercise of that right.
In other words, requesting or using leave for the care of a nursing infant cannot become a hidden reason for dismissal. If, after the request, a disciplinary sanction, termination, or abnormal employer pressure appears, it is important to analyze the case without delay with Fernanda Vargas, employment lawyer in Madrid.
Practical Checklist for Workers and for HR Departments
| For workers | For HR and the company |
|---|---|
| Confirm whether the case involves birth, adoption, foster placement for adoption, or foster care | Verify the qualifying event and the relevant date for calculation purposes |
| Choose the most useful option: daily hour, half-hour, or accrual | Do not impose a different option from the one requested without legal basis |
| Submit the request with 15 days’ notice, unless the collective agreement sets a different period | Reply in writing and keep a record of the decision |
| State the start and end date, and the specific scheduling if applicable | Respect that the specific scheduling corresponds to the worker within their ordinary working hours |
| If there is accrual, attach a clear calculation of hours and working days | Review the calculation case by case and do not apply automatic fixed figures |
| If both work in the same company, anticipate that circumstance | Limit simultaneous use only for justified operational reasons, in writing, and with an alternative plan |
| If there is a refusal, keep track of the 20-day deadline to file a claim | Avoid retaliation and remember the enhanced protection against dismissal |
| If the intention is to extend it from 9 to 12 months, check whether both parents exercise the right with the same duration and arrangement | Provide the necessary employer certificates when the benefit for shared responsibility is requested |
As a final point, the most common mistake is to treat breastfeeding leave as a standard formality with a fixed number of days or only one way of taking it. That is not the case. The option, the calculation, and the possible extension must be reviewed based on the calendar and the legal requirements of each case.
If you need to prepare the request, review an accrual calculation, challenge a refusal, or act in response to a dismissal, you can contact Fernanda Vargas, employment lawyer in Madrid, via WhatsApp or book an appointment on Calendly.