Five days of paid leave for hospitalisation and serious illness
New criteria for requesting and taking paid leave
The five-day paid leave entitlement for the hospitalisation or serious illness of a family member, provided for in Article 37.3.b) of the Workers' Statute, arises with each new qualifying event and does not automatically end upon discharge from hospital. This was confirmed by the Social Chamber of the Spanish Supreme Court in its recent Judgment 753/2026 of 25 September.
The ruling addresses two of the most frequently raised questions since the reform introduced by Royal Decree-Law 5/2023, which extended this leave entitlement from two to five days. This Supreme Court ruling has direct implications for both companies, which will need to review their internal policies, and employees, who will gain greater clarity on the scope of their entitlement.
Five days per qualifying event, not per year.
The Supreme Court clarifies one of the most controversial issues by establishing that the paid leave entitlement is five days for each qualifying event, rather than five days per calendar year.
This means that the leave entitlement does not operate as an annual allowance of days that is exhausted after the first request. Instead, the entitlement is linked to the specific qualifying event that justifies it. Therefore, if a new hospitalisation or another situation meeting the legal requirements occurs during the same year, a new entitlement to leave may arise, even if the employee has previously taken this type of leave.
However, this interpretation does not mean that every new medical situation necessarily gives rise to a separate leave entitlement. It will be necessary to determine whether it constitutes a new qualifying event or a continuation of the previous medical condition. It is worth noting that the Supreme Court has expressly stated that this judgment does not address how the leave entitlement should apply when the same medical condition results in multiple hospitalisations or periods requiring care, as this issue was not part of the legal proceedings.
In other words, it remains unclear whether a relapse or a second hospitalisation due to the same illness constitutes a new qualifying event or a continuation of the previous one. Until a further court ruling clarifies this issue, each case will need to be assessed according to its medical circumstances and timing, without automatically treating it as either a new qualifying event or a continuation of the previous one.
Discharge from hospital does not automatically end the leave entitlement
When the leave entitlement arises from hospitalisation, it does not necessarily end upon discharge from hospital. The leave may continue, up to a maximum of five days, during the subsequent period of recovery at home, provided that the family member continues to require effective care.
The key is to distinguish between discharge from hospital and medical discharge. Discharge from hospital simply means that the person no longer needs to remain hospitalised, but they may still require treatment or care. Medical discharge, on the other hand, may bring the leave entitlement to an end if it confirms that the need for care justifying the leave no longer exists.
It is important to bear in mind that five days is the maximum leave period for each qualifying event, but employees are not automatically entitled to take the full five days. The duration of paid leave will depend on the circumstances of each case, in accordance with the applicable requirements.
Which circumstances entitle employees to request this leave?
Article 37.3.b) of the Workers' Statute provides for five days of paid leave in cases of serious accident or illness, hospitalisation or surgery without hospitalisation requiring recovery at home, provided that the circumstances affect one of the following individuals:
- The employee's spouse or unmarried partner.
- Relatives up to the second degree by blood or marriage.
- Blood relatives of the employee's unmarried partner.
- Any other person who lives with the employee in the same household and requires their effective care.
To take this leave, employees must meet the legal requirements, notify their employer in advance and provide evidence of the circumstances entitling them to request it.
When managing these requests, it is important to assess the circumstances of each case to determine whether the need for care continues and the appropriate duration of the leave.
For companies, this means reviewing internal HR policies and procedures to avoid automatically rejecting requests without first assessing each situation. For employees, it means that having previously taken this leave during the same year does not prevent them from requesting it again.
Ultimately, each situation must be assessed individually, distinguishing between a new qualifying event and the continuation of a previous situation, and verifying whether the conditions giving rise to the leave entitlement remain in place.
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