What protects your job during sick leave (baja)

Terms used

• INSS — The INSS is Spain's national social security institute, which pays sick benefits from day 16 and handles claims against your discharge.
• Mutua — The mutua is an insurance body working with social security that can pay sick benefits on your employer's behalf.
• Parte de alta — The parte de alta is the official discharge that ends your sick leave and starts your duty to return to work.
• Convenio colectivo — The convenio colectivo is the collective agreement for your sector or company, setting pay and conditions beyond the legal minimum.
• Complemento de incapacidad temporal — The complemento de incapacidad temporal is a top-up some collective agreements add to the legal sick pay.
• Licencias — Licencias are paid or unpaid leave entitlements listed in your collective agreement.
• Permisos — Permisos are short permitted absences, such as for family events, set by law or your collective agreement.

Key rules

• Narrow protection: Sick leave is not a valid reason for dismissal, but it does not shield you from disciplinary dismissal for unjustified absences.
• Challenging the alta: You have four days to file a claim with the INSS if you disagree with your discharge.
• Return: You must report back the next working day after the alta.
• Top-ups: Your collective agreement may pay more than the legal minimum, often from day 1.

Who pays you during sick leave

In ordinary sickness, days 1 to 3 carry no statutory benefit, days 4 to 15 are paid by the employer at 60%, and from day 16 the INSS or mutua pays. The INSS is the national social security body. The mutua is the insurer that handles benefits for many employers.

Once the INSS or mutua pays, the rate stays at 60% up to day 20. From day 21 it rises to 75%. The percentage applies to your regulatory base, which is based on your earlier contributions, not your full salary.

Work accidents and occupational disease are different. The benefit is 75% from the day after the accident, and your employer pays for the day of the accident itself.

Many collective agreements add a top-up, often from day 1. This can close much of the gap, so read the section on your agreement below.

What protects you from dismissal

Being off sick is not, on its own, a valid reason to dismiss you. Since February 2020, justified sick absences cannot be used to dismiss you for repeated short absences. The old rule that counted absences over 20% of working days no longer exists.

A dismissal because of your illness can be declared null if it is discriminatory. This is most likely where the illness is long term or linked to a disability.

The protection has limits. Unjustified absences can still lead to disciplinary dismissal. Ordinary sick leave does not stop your employer from ending your contract for other valid reasons. If you are dismissed while on leave, get advice from a union or a labour lawyer quickly, because the time limits to challenge a dismissal are short.

Returning to work

Sick leave ends with the discharge, the parte de alta. You must go back to work the next working day. Your employer must keep your job and reinstate you. If you do not turn up, you risk a disciplinary dismissal.

If you disagree with the alta, you can file a claim with the INSS within four days. The timeline below shows the steps.

Adapting your job after illness

If your condition requires it, your employer must adapt your job or assign you a compatible one. This applies especially to workers who are particularly sensitive to workplace risks, and to pregnancy and breastfeeding. Workers with a recognised disability are also entitled to reasonable adjustments.

After a long absence for health reasons, your employer's occupational health service should assess whether you are fit to work. Ask for this assessment, then ask your employer to apply the adaptations it recommends. How this exam works depends on your employer's prevention service and your collective agreement.

What your collective agreement adds

Your convenio colectivo is the sector or company agreement that sets pay and conditions beyond the legal minimum. It often includes a sick pay top-up, called the complemento de incapacidad temporal.

Your contract and payslips normally name your agreement. If they do not, the right one is the agreement for your employer's activity and area. Your employer or your workers' representatives must tell you which one applies. Unions can also help.

Agreements are published in the official bulletins and in the Ministry of Labour's register. Agreements are renegotiated, so read the version currently in force. Look at the clauses on licencias, permisos and the sick pay top-up. The checklist and documents list below walk you through this.

Timeline and deadlines

• Receive your discharge (parte de alta), which ends the sick leave: when your doctor or the INSS issues it

• Go back to work, where your employer must keep your job and reinstate you: the next working day after the alta

Documents you need

• Your employment contract, which normally names the collective agreement (convenio colectivo) that applies to you. Your employer gave you this when you started.

• A recent payslip, which also normally names your collective agreement. Your employer issues it every month.

• The text of your collective agreement in the version currently in force, published in the official bulletin (BOE, or the regional or provincial bulletin). You need it to read the clauses on leave and on the sick pay top-up.

Checklist

• Look for the name of your collective agreement (convenio colectivo) on your contract and payslips.

• Ask your employer or your workers' representatives which agreement applies to the employer's activity and area, if your documents do not name one.

• Read the clauses on leave (licencias), permits (permisos) and the sick pay top-up (complemento de incapacidad temporal) to see whether the first days are covered.

• Find the version in force in the Ministry of Labour's agreement register (REGCON) or the official bulletin.

What to watch out for

• Missing the window to challenge your alta: If you think you are not well enough to return, you have only four days to disagree with the discharge, and after that the alta stands. File a claim with the INSS within four days of the alta, and ask your union or a labour adviser for help straight away.

• Not turning up after the alta: Sick leave ends with the alta, and you must be back the next working day. Absences after that are unjustified and can lead to a disciplinary dismissal. Return the next working day, or challenge the alta in time if you disagree with it.

• Going back without the adaptations you need: The employer must adapt your job or give you a compatible one if your condition requires it, but this does not always happen unless you ask. Ask the occupational health service to assess your fitness, and ask your employer in writing to apply the adaptations it recommends.

Frequently asked questions

Can my employer dismiss me for being on sick leave?

No, justified absences because of sick leave can no longer be the reason for an objective dismissal. The old rule that allowed it after 20% absence over two months was repealed in February 2020.

What can I do if I disagree with my discharge (alta)?

You can disagree with the alta and file a claim with the INSS, the national social security institute, within four days. Until it is resolved, you are still expected to be back at work the next working day, so talk to your union or a labour adviser quickly.

How do I find out if my collective agreement adds to sick pay?

Your contract and payslips normally name your collective agreement (convenio colectivo), and its text shows whether it adds to sick pay. Look for the clause on the top-up for temporary incapacity (complemento de incapacidad temporal), which often covers the first days.