The future Family Law includes measures for reconciliation such as a paid leave of five days for “serious accident or illness” of the spouse or common-law partner – in addition to relatives up to the second degree and cohabitants – and another four days, also paid, by force majeure “for urgent and unforeseeable family reasons”. To these is added a new unpaid parental leave that can be enjoyed continuously or discontinuously until the children reach the age of eight (in 2023 it will be a total of six weeks throughout the period and from 2024 it will rise to eight). The opinion of the Council of State on the draft – to which EL PAÍS has had access – criticizes that this last leave is not paid, as required by the European directive on which it is based. The Government is open to modifying it along these lines and to remunerating it, at least in part, during the parliamentary process. Meanwhile, other members of the Executive will try to include amendments to improve these permits.
“Work is being done to advance in this regard in Congress, although we do not yet know if it will be a partial or total remuneration for these eight weeks,” explain sources from the Ministry of Social Rights. During the previous negotiation, there has been reluctance from some ministries in the hands of the PSOE to this modification. Consulted by EL PAÍS, the Ministry of Finance did not want to assess this matter. “In the coming weeks, the Government will work to finish fully transposing the directive. Something that surely can be done during the debate on the Family Law”, explains the Secretary of State for Social Rights, Nacho Álvarez.
The opinion of the Council of State —mandatory but not binding— indicates that the Family Law intends to transpose Directive (EU) 2019/1158 in Spain on the reconciliation of family and professional life of parents and caregivers. In this sense, the European standard includes several measures such as paternity leave for ten working days, parental leave for four months, leave for caregivers, absence from work due to force majeure and flexible work formulas. “In general, the transposition of the directive is carried out correctly, although it is understood that it is necessary to make some observations in this regard,” the report says.
Precisely one of them refers to the new parental leave -independent of maternity and paternity leave-, “whose duration is four months, of which at least two are non-transferable and must be paid”. In this sense, “the European directive specifies that (this leave) must be paid, but in the draft it does not appear as such, although the explanatory memorandum explains that the Member States have until August 2024 to transpose this measure”, says the Council of State. It is precisely this change that is being studied for the parliamentary processing of the Family Law.
In addition, according to the advisory body, there are two aspects of the standard in which there is not a full coincidence with what the directive establishes. “The duration of this permit – four months in the European norm, compared to eight weeks (two months) in domestic legislation – and the need to recognize a remuneration for at least the two months that are not transferable – nothing says about it the modification introduced by the draft, an aspect that has been objected to by many of the individuals and entities that have made allegations, considering that an unpaid leave does not favor conciliation as does one linked to the perception of an economic benefit—”.
Improve permits for men
Thus, the Council considers that the planned regulation improves permits for men, but not for women. This is so because “parental leave is covered in our legal system by paternity leave, the duration of which significantly exceeds that provided for in the European standard” (four months as opposed to ten days). However, in the case of women, the paid leave required by the European Union is not reached.
“By introducing into the directive a new leave independent of maternity leave, such as parental leave, whose duration is four months, of which at least two are non-transferable and must be paid, it turns out that the EU guarantees women a minimum of 158 paid days, which is more than what the Spanish legal system recognizes as birth leave (112 days)”, the opinion states. “Not even adding to the sixteen weeks of said leave the maximum period that breastfeeding can reach (which, in the cases in which it is enjoyed cumulatively, reaches 20 working days, thus being able to enjoy a total of 132 days of leave with the right to benefit) those 158 days are covered ”, he concludes.
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