Birth and Childcare Leave: How to Manage Remaining Days That Do Not Complete a Full Week

A few weeks ago, we held our webinar on the Family Law, a session that generated significant interest and in which we discussed some of the key developments regarding work-life balance, co-responsibility, and employment leave. If you were unable to attend or would like to revisit the topics covered, you can access the webinar summary and recording on the Family Law.

Regarding one of the issues specifically addressed during the webinar, the Spanish National Social Security Institute (INSS) has published Management Criterion 16/2026, dated 22 May, introducing an important clarification regarding the use of birth and childcare leave following the extension approved by Royal Decree-Law 9/2025.

Although it does not amend the current regulations, it provides a practical interpretation that prevents certain employees from losing leave days in specific situations.

Reminder: How Birth and Childcare Leave Changed Following the 2025 Reform

Royal Decree-Law 9/2025 extended birth and childcare leave to 19 weeks (32 weeks for single-parent families).

The leave is currently structured as follows:

• 6 mandatory weeks immediately following the birth, adoption, or foster care placement.
• 11 weeks of flexible leave that can be taken until the child reaches 12 months of age.
• 2 additional weeks that may be taken until the child reaches 8 years of age.

These two additional weeks apply to births, adoptions, or foster care placements occurring on or after 2 August 2024 and may be requested from 1 January 2026.

The Issue: What Happened to Days That Did Not Complete a Full Week?

Before the publication of this new criterion, there was uncertainty regarding certain exceptional situations.

Specifically, remaining leave periods of fewer than seven days could arise when:

• The leave entitlement was extended due to the child’s hospitalization for a period that did not correspond exactly to full weeks.
• The leave was taken on a part-time basis, resulting in residual days remaining after the calculation.

Until now, these days had to be used before the child reached 12 months of age. In practice, if they were not taken within that period, there was a risk of losing them.

 

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What the INSS Has Now Clarified

The new Management Criterion 16/2026 changes this interpretation.

According to the INSS, any remaining days that do not amount to a full week may also be taken after the child reaches 12 months of age and until the child turns 8 years old.

The key element of this interpretation is that the legislation allows up to two weeks of leave to be taken during this later period, but it does not require those weeks to consist of full seven-day blocks.

As a result, residual days generated in these exceptional situations may:

• Be taken independently.
• Be combined with a later week of leave.
• Be incorporated into the deferred leave periods provided for by the regulations.

However, the total leave taken after the child reaches 12 months of age may not exceed 14 days under any circumstances.

A Change That Provides Greater Flexibility

The practical significance of this criterion lies in the fact that it prevents certain leave days from being lost due to purely technical reasons or the way in which the leave has been managed.

The interpretation adopted by the INSS is consistent with the purpose of the 2025 reform, which aims to promote work-life balance and provide greater flexibility in organizing childcare periods.

It also allows employees to make full use of the rights granted by the legislation, particularly in situations involving child hospitalization or when leave has been taken on a part-time basis.

What Employers and Employees Should Consider

Although the criterion does not alter the duration of the leave or create new rights, it does have practical implications for planning absence periods.

For this reason, it is advisable to:

• Review cases where outstanding days remain due to hospitalization or part-time leave arrangements.
• Plan their use appropriately within the applicable legal deadlines.
• Coordinate the administrative management of the leave with internal HR and payroll procedures.
• Assess the impact of these situations on workforce planning and work organization.

The Importance of Monitoring Administrative Interpretative Criteria

Employment law developments do not always come through legislative changes. In many cases, administrative interpretative criteria resolve practical issues that directly affect both employers and employees.

The new Management Criterion 16/2026 is a good example of this: without modifying the legislation itself, it provides greater flexibility in the use of birth and childcare leave and prevents the loss of certain leave days that previously created uncertainty.

Adlanter, Your Partner in Employment Law and People Management

Regulatory changes and administrative interpretations can have a direct impact on the management of leave, absences, and employment relationships. Having access to specialist advice helps organizations anticipate risks, ensure compliance, and correctly implement the work-life balance measures provided for under current legislation.

Do you have questions about birth and childcare leave or other work-life balance measures? Our Employment Law Team can help you assess each situation and find the most appropriate solution for your organization.