The Supreme Court confirms that family force majeure leave is always paid leave

The Supreme Court has clarified an issue that had been generating uncertainty in employment practice: family force majeure leave under Article 37.9 of the Spanish Workers’ Statute is always paid leave, regardless of whether it is expressly provided for in a collective bargaining agreement or company agreement.

This interpretation provides greater legal certainty for both companies and employees, especially following the regulation introduced by Royal Decree-Law 5/2023.

What does Article 37.9 of the Spanish Workers’ Statute establish?

Article 37.9 of the Spanish Workers’ Statute recognises employees’ right to be absent from work due to urgent and unforeseeable family reasons when their immediate presence is required.

This leave may amount to up to four days per year, which may also be calculated in hours.

The interpretative controversy focused on whether these absences should always be paid or whether remuneration could depend on collective bargaining agreements.

The debate: paid leave or unpaid leave?

Before the Supreme Court’s ruling, two different interpretations coexisted:

• Restrictive interpretation: remuneration only applied if expressly established in a collective bargaining agreement or company agreement.
• Protective interpretation: the right to remuneration derives directly from the law as a mandatory minimum entitlement.

This dual interpretation created uncertainty in absence management and labour cost planning.

What has the Supreme Court ruled?

In its judgment of 17 April 2026, the Supreme Court dismissed the appeal and confirmed that family force majeure leave under Article 37.9 of the Workers’ Statute is necessarily paid by legal mandate.

Key points of the judgment

1. Mandatory minimum right. The leave constitutes a mandatory minimum employment right and therefore cannot be restricted or eliminated through collective bargaining.
2. Remuneration established by law. The Court interprets that the legislation directly recognises the paid nature of the leave within the limit of four days per year.
3. Collective bargaining agreements cannot restrict the right. Collective bargaining may develop or improve the regulation, but cannot condition or eliminate the remuneration legally established.
4. Purpose of work-life balance and family protection. The regulation forms part of work-life balance and co-responsibility policies, preventing loss of salary from discouraging employees from using the leave in urgent situations.
5. Consistency with the European framework. Although Directive (EU) 2019/1158 does not expressly require this leave to be paid, the Spanish legislator has opted for a more protective standard, which is fully valid.

 

I want more information

 

Practical impact for companies and employees

For companies

• The leave must always be considered paid leave.
• It does not depend on the provisions of a collective bargaining agreement.
• It must be integrated as a basic legal right within absence management policies.

For employees

• Right to be absent from work without loss of salary in cases of family emergency.
• Direct application without the need for collective bargaining regulation.
• Maximum limit of four days per year or the equivalent in hours.

What changes following the Supreme Court ruling?

The Supreme Court judgment provides a definitive interpretation regarding the nature of family force majeure leave, consolidating its status as a paid minimum legal right.

This ruling strengthens legal certainty in the management of workplace absences and clarifies a particularly relevant aspect of work-life balance policies.

How Adlanter can help you

Correctly applying this type of case law is essential to avoid contingencies in day-to-day employment management, especially regarding leave, absences and work-life balance policies.

At Adlanter, we support companies in employment management and comprehensive regulatory compliance, helping them correctly interpret legislation and the latest case law and apply it to business practice with legal certainty.

If you want to ensure that your company’s leave management, working time arrangements and work-life balance policies are fully aligned with current regulations, our expert employment compliance support team can help you review and optimise them.