Discover in this article the new rights and leave entitlements since the reform came into effect.

Leave for medical examinations and preparation for childbirth1

In Spain, pregnant employees have the right to take paid leave from work to:

  • undergo mandatory medical examinations related to pregnancy monitoring,
  • participate in childbirth preparation classes.

They must inform their employer beforehand and justify the need for these absences during the workday.

The Workers' Statute (Estatuto de los trabajadores LET - equivalent to the Labor Code) does not explicitly specify the conditions under which the other expectant parent can exercise these rights to accompany their partner. A recent ruling2 granted both parents the right to paid leave to attend classes on childbirth preparation techniques.

Note: This extension for the second parent does not apply to mandatory medical examinations during pregnancy, but only to childbirth preparation classes.

This leave has also been extended to adoption cases, thus allowing prospective parents to attend mandatory information and preparation sessions. Similarly, it authorizes the completion of necessary psychological and social assessments prior to adoption if they take place during the workday.

In France3 a pregnant employee has the right to be absent for the seven mandatory medical examinations, provided she notifies her employer beforehand, without any reduction in pay.

As for the spouse, they are also entitled to leave, but only for three mandatory medical examinations. This right also extends to the civil partner.

Maternity and Paternity Leave

Maternity and paternity leave are individual rights of the employee and cannot be transferred to the other parent. In Spain, the leave duration is the same for both parents and is divided into two periods.

Leave for the biological mother: The employment contract is suspended for a total of 16 weeks. The first six weeks immediately following childbirth are mandatory and must be taken full-time to ensure the mother's health and safety.

Note : The biological mother can begin her maternity leave up to four weeks before the expected delivery date.

In France, maternity leave is 16 weeks for the first child and up to 26 weeks for the third and subsequent children, and may vary depending on the number of children expected.

Leave for the other parent: The total duration is also 16 weeks, and again, the first six weeks following childbirth are mandatory and must be taken full-time.

In France, paternity leave lasts 25 calendar days, including 4 days to be taken immediately after birth leave. The employer must be notified with one month's notice. During this period, the employment contract is suspended. Paternity leave must be taken within six months of the birth.

Once the mandatory period has ended, the suspension of each parent's employment contract can be spread out as they see fit, in the form of weekly periods, taken cumulatively or discontinuously, until the child reaches one year of age.

Note: If both parents take their leave while working for the same employer, the employer may limit simultaneous leave for valid and objective reasons, duly justified in writing.4

In the case of single-parent families: The single parent cannot take the birth leave that would have been granted to the other parent had it been available. However, in this situation, he can benefit from a two-week extension of his leave.

In Spain, as in France, and in order to protect employees' exercise of these new rights, Law5 stipulates that if an employee on parental leave is dismissed, the dismissal will be considered null and void. This entails the employee's reinstatement in the company, as well as the payment of back wages for the period between the date of dismissal and the date of reinstatement.

Creation of a New Parental Leave6

The Spanish reform of 20237 introduced a new parental leave, which constitutes an individual right for employees, both men and women, and cannot be transferred. This right can be exercised until the child reaches the age of 8.

Its maximum duration is 8 weeks, continuous or discontinuous, full-time or part-time, in accordance with regulations. The employee must specify the start and end dates of the leave and provide 10 days' notice.

Currently, parental leave is unpaid. However, in order to comply with European legislation8, it is expected to be compensated starting in August 2024.

In France, there is not yet an equivalent leave. However, there is parental leave for education with a maximum duration of one year. Any employee with at least one year of service is eligible. Both parents are entitled to this leave, and it can be taken simultaneously or consecutively. The contract is then suspended and the employee ceases to receive their salary.

Note: In France, discussions are underway with labor unions and employers' organizations, and it is possible that « congé familial » will be introduced in 2025, designed to support new parents by offering them the possibility of taking time off work to care for their child, with improved compensation9.

Footnotes

  1. Article 26.5 et 37.3f de la LET ↩

  2. TSJ de Galice du 7 novembre 2023 ↩

  3. Article L1225-16 du Code du travail français ↩

  4. Article 48.9 de la LET ↩

  5. Articles. 55.5.a) et 53.4.a) LET ↩

  6. ET art 45.1.o; 48 bis LET ↩

  7. Décret-loi royal 5/2023 du 28 juin ↩

  8. Directive européenne 2019/1158 du 20 juin ↩

  9. Aurore Bergé annonce la création d’un congé familial en 2025, qu’elle promet « mieux rémunéré » que le congé parental (lemonde.fr) ↩