All workers have the right to take time off work as long as they can provide legal justification for it. However, not all absences are considered justified, which means that not all of them entitle the employer to pay. We will explain below what the Labour Code says.
When are absences considered to be justified?
We consider absence to be justified when it is authorised by the employer or when it occurs in the following situations :
- Death of a spouse or family member;
- The number of days that an employee is allowed to be absent in the event of the death of someone else always depends on the degree of kinship between the employee and the deceased:
- 20 days in the case of the death of children, stepchildren, spouse not separated from people and goods, person with whom he or she has lived in a de facto union or in common economy;
- 5 days in case of death of mother, father and parents-in-law, that is, relatives or kin in the first degree of the direct line;
- 2 days in case of death of grandparents, great-grandparents, grandchildren and great-grandchildren. And also relatives of the partner from the second degree in the direct line and relatives and affines from the second degree in the collateral line, i.e. brothers and sisters-in-law (also applies in a situation of de facto union).
Marriage
If the employee marries, he can be absent up to 15 days with justification.
Provision of evidence
In case of working students, absences are justified when the employee needs to be absent to attend exams (including also the day before the exam). If you have several examinations on consecutive days, you may be absent for as many days as there are examinations to take, but absences cannot exceed four days per subject in each academic year.
Illness, accident or legal obligation
Absences are also justified if they are the result of a medical prescription following recourse to a medically assisted procreation technique, illness, accident or fulfilment of a legal obligation.
Childcare
In order to provide assistance in situations of illness or accident to their children, employees can be absent with justification:
- Up to 30 days per year in case the child is 12 years of age or younger or, regardless of age, if he/she suffers from a disability or chronic illness (or, if applicable, for the entire period of hospitalisation);
- Up to 15 days annually if the child is over 12 years of age.
In either case, one day is added for each child.
Attendance of grandchildren
Grandparents can be absent for 30 consecutive days following the birth of a grandchild, provided they are from the same household and provided the child is under 16 years of age;
They can also be absent to care for a minor grandchild in the case of illness or accident or if the child, regardless of age, suffers from a disability or chronic illness. But be careful, this is only allowed if the grandparents do it in place of the parents, if the latter are no longer able to do it.
Assistance to a member of the household
- An employee is allowed up to 15 days absence per year to assist, in case of illness or accident, the spouse or the person with whom he lives in a non-marital partnership or common economy;
- Up to 30 days if the spouse or unmarried partner suffers from a chronic disability or illness;
- Up to 15 days per year to assist a relative in the ascending line, i.e. parents, parents-in-law and grandparents (even if they do not belong to the same household), or in the 2nd degree of the collateral line, i.e. brothers and sisters-in-law.
- Travel to educational establishments
Employees who are parents are allowed to take four hours off per quarter for each child in order to go to their children’s school.
Collective representation of employees
If the employee belongs to a structure of collective representation, such as trade unions, workers’ committees or workers’ representatives, he is permitted justified absence provided that the reason for his absence is to perform duties related to that position.
Candidacy for public office
Employees who are candidates for public office, during the legal period of the election campaign, are also entitled to justifiable absences.
When are these considered unjustified absences?
If on the one hand we have the so-called justified absences, on the other we have unjustified absences, which occur when the worker is absent during the normal working period without any valid justification.
But be careful, unjustified absence is not only considered when the worker is absent for a full day or more. The law tells us that attendance and punctuality are duties of the worker. If he/she is more than one hour late, the employer can write him/her off for a day, alleging that, due to this delay, the worker will no longer be able to carry out his/her duties on that day. If the delay is more than half an hour, it is up to the employer to decide whether or not to give half a day’s unjustified absence.
What are the consequences of unjustified absences from work?
In addition to the negative effects on performance evaluation and professional career development, unjustified absences lead, most of the time, to the most immediate consequence, which is the reduction in salary proportional to the period of the worker’s absence. When the absence occurs the day before or after the weekend, day off or public holiday, this wage reduction is aggravated, meaning that the worker is penalised by two days’ salary.
However, there are two measures that can be taken to mitigate the reduction in salary:
- Waive holiday days: The worker can avoid the loss of pay by replacing it with the deduction of holiday days, but only in a number that allows the worker to take 20 holiday days.
- Working overtime. Always within the limits provided for by law and when the collective bargaining instrument so allows.
Another consequence of unjustified absence from work and, by the way, the most serious is, according to Article 351, dismissal for just cause. The employer may, at its discretion, legally dismiss the employee if the number of unjustified absences exceeds five in a row or ten at intervals per calendar year or if it considers that serious damage or risks to the employer may result from such absence. This dismissal for just cause causes the employee to lose the right to compensation.
Remember also that if you put forward a hypothetical false justification to your employer to justify your absence, the consequence could be the same as not presenting any type of justification, and this attitude could be considered a valid reason for dismissal with just cause.
