Childcare leave is a right of mothers and fathers, whether natural, by adoption, and even by foster care, to suspend their employment contract until the minor reaches 3 years of age. The use of this right is for the care of the minor. We tell you how you should request the leave of absence, whether or not there is the possibility of an extension, and what options you have when it comes to joining your job again.
This right is included in article 46.3 of the Workers' Statute. This article talks about leave of absence for the care of a child, or for the care of a relative up to the second degree of consanguinity or affinity who cannot fend for themselves, and do not carry out paid activity.
Requirements for childcare leave
As we have said, childcare leave is a worker's right, and the company cannot deny it, if it complies with the following requirements:
- Having a relationship of up to the second degree of consanguinity or affinity with the worker.
- For reasons of age, accident, illness or disability, the family member cannot take care of himself.
- The family member does not carry out a paid activity.
To request leave the age or type of contract is irrelevant. There are collective agreements that regulate the way in which notice must be requested, which must be given to the company, but they can never limit the mother's right to request it.
The working mother You can request the leave of absence when you deem it appropriate. However, the maximum duration of this will be three years, starting from the birth of the child. We explain this. It does not mean that the leave of absence lasts three years, but that it can be enjoyed until the minor reaches three years of age.
If your son or daughter requires it you can request leave for sections less than three years, although they are several and separate. The end of the leave of absence is up to you, therefore, you are the one who decides when to return to the job.
What about my job title?
While you are on leave of absence for the care of your son or daughter, the company has to keep your job for a year, always. In that year you will be able to return to same job and in the same place. If the leave of absence lasts more than one year, and is extended to three, the company must reserve a job for you, it will have to give you a position of a similar or similar category to the one we had before the leave began. Refusing to reinstate you would be a void dismissal.
During the entire time you are on leave, the company must compute this seniority for future severance pay. In addition, if, for example, you are on leave of absence for childcare and you become pregnant while on leave, you do have the right to receive maternity leave.
If during this time of leave you do another job more compatible with the care of your son or daughter, there are Supreme Court rulings that allow it. But beware! because if the company in which you have the leave of absence considers that you are not fulfilling the purposes for which it has been granted, it can attempt a disciplinary dismissal.
How to request child care leave
Normally, leave for childcare must be requested with a 15 days notice Unless your Labor Agreement provides otherwise. It must always be requested in writing. Although it is a right of any working mother, you cannot take leave unilaterally, that is, you need the approval of the company.
You can make the request for leave of absence at any time. It does not matter if you are on vacation, on temporary disability leave, or enjoying your maternity or breastfeeding leave.
When you are on leave the company has no obligation to quote for you during such periods of leave. However, Social Security considers this period as listed for certain purposes. This time is quoted to contingencies such as retirement or maternity.