For further information and personalized advice, please do not hesitate to contact Fernanda Vargas through WhatsApp or book an appointment via Calendly. This article provides an in-depth and updated guide to the 5 working days leave for hospitalization under Article 37.3.b) of the Workers’ Statute, detailing who is covered, how days are counted, and when the leave may begin.
What is the 5-Day Leave and What Does Article 37.3.b) of the Workers’ Statute Establish?
The 5-day paid leave for hospitalization is enshrined in Article 37.3.b) of the Workers’ Statute. Inspired by the amendments brought by Royal Decree-Law 5/2023 and the EU Directive 2019/1158, this leave aims to help employees balance professional obligations with family care when a close family member faces hospitalization or serious illness. It ensures full salary payment and continued Social Security contributions during the leave period, safeguarding the worker’s employment continuity.
From 2 Days to 5: Changes Introduced by Royal Decree-Law 5/2023 and EU Directive 2019/1158
Previously, the leave provided 2 days (or 4 if travel was required). The recent reform removed the travel distinction and extended coverage to include spouses, de facto partners, relatives up to the second degree, and even cohabitants needing effective care. Additionally, the regulation now explicitly covers cases of surgical intervention without hospitalization that require subsequent home rest.
Who is Covered: Spouse, Registered Partner, Relatives up to Second Degree, and Cohabitants
The modern regulation recognizes the importance of family care by broadening the group of beneficiaries. Not only are spouses or registered partners covered, but also relatives by blood or marriage up to the second degree and any person living under the same roof if effective care is necessary. This provision is particularly beneficial for foreign workers, who benefit from maintaining uninterrupted employment records essential for renewing their residency permits.
Five Working Days, Not Calendar Days: The Criterion Confirmed by the Supreme Court in 2026
The Social Chamber of the Supreme Court unified its jurisprudence in 2026 with several key rulings. In the STS 172/2026 judgement, it was clearly established that the calculation of the leave must be in working days and not calendar days, irrespective of any travel requirements. This ensures that the leave reflects the working schedule of the employee, making it a fair and practical measure.
When Does the Leave Begin? Insights from STS 126/2026 and the Right to Choose the Moment of Care
One of the most debated issues is the starting point of the leave. The STS 126/2026 decision clarifies that an employer cannot force the leave to begin on the same day as the triggering event or the following working day. Since there is no explicit legal provision or EU directive mandating an exact start, the worker retains the right to choose when to initiate the leave, thus facilitating effective care planning.
Hospital Discharge Does Not Always End the Leave: Home Rest and Medical Clearance
Supreme Court jurisprudence, notably STS 140/2026, has clarified that being discharged from the hospital does not automatically terminate the leave if home rest remains prescribed by the doctor. The leave continues either until the prescribed home rest ends or until the 5 working days are fully utilized, whichever occurs first.
The Leave Is Independent of the Actual Duration of Hospitalization
Importantly, the right to the 5 days of leave is not contingent on the length of the family member’s hospitalization. The STS 275/2026, issued on March 12, 2026, confirms that the leave stands independently from the actual number of days the relative is hospitalized, ensuring that the worker can fully benefit from the right at hand.
Employer Requirements: Advance Notice, Justification, and No Additional Demands
The legal framework requires that employees provide an advance notice and a valid justification to request the leave. As established by STS 373/2026, while employers are entitled to verify aspects like cohabitation or the necessity of care when no previous record exists, they cannot impose additional requirements beyond what is stipulated in Article 37.3.b) of the Workers’ Statute. Any such extra demands may be subject to legal challenge.
Collective Bargaining Agreements and Enhancements: Which Norm Prevails?
The statutory provision sets the minimum right; however, collective bargaining agreements or individual contracts may offer enhanced benefits such as additional days or more favorable counting methods. It is crucial that these improvements do not undermine the basic rights established by the law.
Differences with the Family Force Majeure Leave and Extended Leave for Family Care
It is important not to confuse the 5-day hospitalization leave with other types of leave: the family force majeure leave, under Article 37.9, caters to urgent and unpredictable situations (up to 4 days per year), and the extended leave for family care under Article 46.3, which follow different rules. In addition, the parental leave of 8 weeks, part of which is now compensated by Social Security, should also be seen as a separate measure.
How It Appears on the Payslip and Social Security Contributions
During the 5-day leave, the employment contract remains active; hence, the employee continues to receive their normal salary, and Social Security contributions are maintained. This continuity is essential for preserving the worker’s employment record, particularly of interest for foreign employees when renewing their residence and work permits.
Foreign Workers: Why You Should Document Every Leave Before Renewing Your Residency
For foreign workers, proper documentation of each leave instance, including payslips, official medical certificates, and communication of advance notice, is imperative to demonstrate a continuous employment history. This documentation is often critical when renewing residency, as it evidences the worker’s adherence to legal obligations and preserves their rights in Spain.
What to Do if the Employer Denies or Discounts Days: Deadlines and Claim Procedures
If an employer denies the leave, deducts days from the payslip, or erroneously counts them as calendar days, workers should pursue an internal documented claim, followed by filing a conciliatory claim through the regional mediation service and ultimately resorting to legal action before the Labor Courts if necessary. Maintaining all supporting documentation is crucial to successfully challenge such decisions.
Frequently Asked Questions
Is the leave applicable to all workers?
The 5-day leave applies to any worker qualifying under Article 37.3.b) of the Workers’ Statute, though specific conditions may vary depending on the applicable collective bargaining agreement.
What if the family member is discharged but home rest remains prescribed?
The STS 140/2026 clarifies that if home rest is still required, the leave continues until the rest period ends or until the full 5 working days are consumed.
Can the employer demand additional proof of the care needed?
While the employer may request verification in cases where prior records do not exist, it cannot systematically impose extra documentation beyond the legal requirements established in the statute.
This article provides a general legal overview and is not a substitute for individualized legal advice. Each case may depend on the specific collective agreement and circumstances involved.
For more detailed information or personalized consultation, please contact Fernanda Vargas via WhatsApp or book an appointment via Calendly.