Does sick leave count toward renewing a residence and work permit?

The renewal of a residence and work permit in Spain remains one of the most sensitive moments in international talent management, especially when the employee’s work history has not been continuous.
One of the most common questions—and until now with inconsistent answers in practice—is what happens when the employee has been on temporary incapacity (sick leave): does this period count as work activity, or could it jeopardize the renewal?
The Supreme Court has unified its criteria, and its interpretation has significant implications for both companies and foreign workers.

The Supreme Court’s criteria: temporary incapacity does count

The Supreme Court has established that time spent on temporary incapacity must be counted for the purposes of renewing a residence and work permit.
The key lies in how the requirement of “having carried out work activity” is interpreted. The Court adopts a substantive approach and concludes that:

• The employment relationship is not terminated during temporary incapacity, but rather suspended.
• The temporary incapacity benefit is contributory, implying continuity within the Social Security system.
• Therefore, the employment relationship remains in force, even if no actual work is performed.

In addition, the Court introduces a particularly relevant argument:
there is no justification for treating temporary incapacity more restrictively than other situations such as unemployment or the receipt of social benefits, which do allow for renewal.
Consequently, temporary incapacity should be considered equivalent to carrying out work activity.

Why is this criterion relevant in practice?

Until now, it was not uncommon for the Administration to deny renewals when the employee did not meet the minimum periods of activity, without taking into account periods of sick leave.
This led to inconsistent situations:

• Workers who had contributed and maintained their employment relationship but could not renew.
• Differing interpretations between immigration offices.
• Legal uncertainty in renewal planning.

The Supreme Court’s criteria correct this approach and align renewal with the logic of the Social Security system.

 

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Common risks that still exist

Despite the new criteria, there are still critical points in practice.

1. The first is data traceability: inconsistencies between periods of temporary incapacity, employment records, and submitted documentation can lead to issues.
2. The second is lack of planning: many renewals are prepared without first analyzing whether the work history meets the required criteria.
3. And the third, at least in the short term, is the uneven application of the criteria, until it becomes consolidated in administrative practice.

Anticipation and a practical approach

Beyond the ruling, this case highlights a key idea:
the renewal of permits does not depend solely on meeting requirements, but on how real-life situations are interpreted within the legal framework.
Temporary incapacity, periods without activity, or contractual changes are common scenarios that should be analyzed in advance to avoid risks.

How Adlanter can help you

At Adlanter, we support companies and law firms in the comprehensive management of international mobility, including the renewal of residence and work permits.
We analyze each case from a practical perspective, identifying risks before they materialize and ensuring that situations such as temporary incapacity are properly integrated into the application.
If you need to review a case or anticipate a renewal, our team can help you do so with confidence and without uncertainty.