The most important features in terms of employment are listed below:
The wording of Article 4.2.c) of the Labor Act is amended to state that mistreatment of women or men for exercising their rights regarding work-life balance and the co-responsibility of family and work life shall be deemed gender discrimination.
With respect to the adaptation of the employee’s working hours, the following changes are introduced:
- The RDL expressly recognizes employees’ right to adapt their working hours when there is a need for them to take care of their spouse, de facto spouse, children over the age of 12, blood relatives up to the 2nd degree of sanguinity, as well as any persons dependent upon the employee and who live in the same home, if they “justify the circumstances on which their request is based". From the law’s wording it appears that the need to care for children under the age of 12 exists and is recognized. However, in the case of older children or other family members that require care, the factual assumption must be evidenced.
- The maximum period for negotiating the change in hours, between the company and the employee, has been shortened from thirty to fifteen days.
- It should be noted that if the company does not issue an express and reasoned decision after said fifteen-day period, it will be assumed that the change in hours was granted in the terms requested.
- The right to return to the situation prior to the change in working hours is recognized at the end of the agreed period or when the reasons for said change in hours cease to exist. Before the law was amended, it only recognized a right to request such changes.
In relation to the paid leave of absence stipulated in Article 37 of the Labor Act, the following new features are incorporated:
- The following rights now include de facto spouses as well: a) the fifteen-day leave for marriage, applicable as from registration of the partners as a de facto couple; b) sick leave due to a serious illness, accident or hospitalization of the employee’s partner; and c) the two-day leave for the partner’s death.
- The legal regime for leave in the event of illness, accident or hospitalization has been substantially improved. On one hand, its duration is extended to five days (as opposed to the previous two), regardless of whether or not it is necessary for the employee to travel. On the other hand, the following individuals are recognized as being causes for the employee to be eligible for this leave (in addition to those already existing): a) the spouse; b) the de facto spouse; c) the blood relatives of the de facto spouse; d) and "any other person, other than those cited above, who lives with the employee in the same home and who requires the employee’s effective care".
- A new leave is created in Article 37.9 of the Labor Act, whereby the employee has the right to miss work on the basis of force majeure if there are urgent reasons related to family members or persons living with them, "in the event of illness or accident that makes the employee’s immediate presence essential". This is a paid leave of absence that has the particularity of being calculated in hours instead of days. Specifically, it involves a total sum per year that is equivalent to four days’ work, "in accordance with the provisions of the collective agreement or, failing that, according to the agreement reached by the company and the employees’ legal representatives ".
- Finally, with respect to the leave for infant care, it is noted that if the company limits the simultaneous exercise of the right when two employees request it for the same causal subject, the company must offer an alternative plan that ensures both employees can enjoy the leave and enables them to exercise their rights of work-life balance.
The reduction of the working day for reasons related to caregiving was also amended. On one hand, the following are expressly recognized as causal subjects: a) the spouse; b) the de facto spouse; and c) the de facto spouse’s blood relatives (which are added to the subjects that the law already covered previously). On the other hand, the RDL also clarifies that if the company denies the two persons requesting the simultaneous enjoyment of the time reduction based on the same causal subject, "it must offer an alternative plan that ensures the reduction is enjoyed by both employees and makes it possible for them to exercise their rights of work-life balance". Finally, it warns that, in the exercise of this right, the promotion of co-responsibility between women and men must be taken into account in order to avoid the perpetuation of gender roles and stereotypes.
A new Article 48 bis was stipulated for the Labor Act, with the purpose of creating a new "parental" leave for people who have minors or foster children in their custody for a period of more than one year. This is an individual right of either male or female employees and it is non-transferable. It establishes the possibility of enjoying a "leave" of up to eight weeks to attend to the needs of children under eight years of age. This right may be taken continuously or discontinuously, on a full-time or part-time basis, with the only requirement being that the company be notified ten days in advance or with the notice established in the collective bargaining agreement, except in cases of "force majeure". However, in the event that two or more employees are entitled to exercise this right for the same causal subject, or in other cases stipulated in the relevant collective bargaining agreements where the right to take parental leave in the period requested seriously upsets the company’s proper operation, then the company may postpone the granting of the leave for a reasonable period, justifying it in writing and after having offered a more flexible alternative for the employees to enjoy their rights.
Despite the fact that the legislator refers to this situation as a "leave", its nature is really a case of “contractual suspension” during which time the obligations of working and being paid for the work cease. That is precisely why it has been included in the causes related to Article 45.1 of the Labor Act.
With respect to the leave for childbirth and childcare, before the RDL the term for this leave could be extended in two specific cases: if the child was born with a disability and if there were multiple births or adoptions. In both cases, an additional term of two weeks was recognized, one for each of the parents. With respect to single-parent families, the new RDL recognizes the possibility of the single parent enjoying both the extensions in full.
In relation to the leave of absence for the care of family members, some changes have also been incorporated: The RDL now includes the right to take this leave to care for one’s spouse, de facto spouse, or the de facto spouse’s blood relatives. On the other hand, it should be pointed out that, in the bill for the Family Act, the leave of absence to care for relatives based on “affinity” was conditioned upon there being no blood relatives. However, in the final wording that was passed, the legislator only warns that, if this right is exercised, co-responsibility must be encouraged.
Finally, Articles 53.4 and 55.5 of the Labor Act and Articles 108.2 and 122.2 of the Employment Jurisdiction Act have been amended to include (among the cases where dismissals automatically qualify as null and void unless there is sufficient cause for them to qualify as justified) dismissals without cause that affect employees who are enjoying these new work-life balance rights (parental leave under Article 48 bis of the Labor Act, the working-hour changes stipulated under Article 34.8 of the Labor Act, or the leaves referred to under Article 37 of the Labor Act (Sections 3.b), 4, 5 and 6).
In addition, we must take into account that if a dismissal affects those who are enjoying the new part-time parental leave, their total salary (instead of the part-time salary) must be included for purposes of calculating the relevant severance pay.
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