Workers in Spain have the right to request five days of paid leave to care for a family member who has suffered a serious illness, an accident, hospitalization, or a surgical procedure that requires home rest. However, one of the main doubts about this work-life balance measure has to do with the possibility of requesting it again after having used up the available days. Can an employee ask for another five days if their mother is admitted to the hospital again? And what if another family member needs an operation a few weeks later?
The Supreme Court has clarified that this leave is not limited to five days per calendar year, so companies cannot prevent a worker from being able to enjoy it again when a new circumstance arises that meets the legal requirements. This is established in the judgment 753/2026, of September 25, in which the Social Chamber dismisses an appeal filed by several companies in the RACE Group and upholds a previous decision by the National Court that was favorable to the trade unions UGT, CCOO and CSIF.
The court’s decision is especially important for those who must take care of family members with recurring health problems, or for those households in which several people need medical care throughout the year. The right does not consist of having an annual pool of five days, but in being able to be absent from work for a maximum of five days for each new event that gives rise to the leave, as long as the conditions provided for in the Workers’ Statute are met.
This leave is regulated in the article 37.3.b of the Workers’ Statute and was expanded in June 2023 through Royal Decree-Law 5/2023, which increased its duration from the previous two days to five workdays. The modification was introduced to adapt Spanish legislation to European regulations on reconciling family and professional life, although its application has generated various judicial controversies regarding the number of times it can be used, the family members included, and the point at which it must end.
How many times per year can the five-day leave for family illness be requested?
The main novelty of the Supreme Court ruling is the confirmation that there is no maximum number of five-day permits that a worker can enjoy over the course of the year. The court considers that Spanish legislation links this right to the occurrence of a specific circumstance, such as hospitalization or a serious illness, and not to an annual period of available days.
This means, for example, that a person who has used five days in February due to their father’s hospitalization will be able to request a new leave in June if their mother needs surgery. They will also be able to exercise the right again if, later on, another independent medical situation occurs that meets the legal requirements.
The interpretation directly affects companies that until now had applied internal restrictions and considered that the five days constituted the maximum each employee could enjoy during the year. The Supreme Court understands that this limitation is not reflected in the Workers’ Statute and, therefore, cannot be imposed in a general manner.
The ruling explains that when the legislator has wanted to establish an annual limit for a leave, it has indicated it expressly. As an example, the magistrates mention absences due to urgent family reasons of force majeure, which do have a paid duration equivalent to four days per year.
The higher court also rejects the argument used by the recurring companies, which claimed that European regulations only oblige ensuring five annual days per worker. Although Directive 2019/1158 establishes that minimum, Community legislation allows Member States to maintain or introduce more favorable conditions. In the Spanish case, the extension made in 2023 did not eliminate the possibility of enjoying a new leave when another cause that justified it arose.
However, the absence of an annual limit does not mean that five additional days can be requested for any need for family care. Each leave must be supported by one of the circumstances provided for by law, and its maximum duration will be linked to the persistence of the situation that gives rise to it.
What happens if the same family member is hospitalized again or suffers a relapse
One of the questions that generates the most doubts is the situation of workers who have already enjoyed the leave and need to request it again to care for the same person. The general criterion is that a new hospitalization or an independent medical episode can generate another right to five days, although not all relapses automatically allow a new leave.
For example, if an employee uses the leave because their father is admitted to the hospital and, months later, he is hospitalized again for a different illness, there would be two distinct causative events that could justify two leaves. The situation becomes more complex when the second admission is related to the same condition or forms part of a medical process that has not yet ended.
At this point, the Supreme Court has introduced an important clarification. Its September 2026 ruling does not expressly resolve when two hospitalizations deriving from the same disease must be considered independent, an issue that the justices leave out of the proceedings.
Therefore, it cannot be concluded that any readmission allows automatically obtaining another five days. It will be necessary to determine whether there is a new causative event or whether it is the continuation of a previous medical situation. This distinction may be especially relevant in patients with chronic diseases, long-term treatments, or successive hospital admissions.
The existing case law does not offer an identical solution for all relapse scenarios. While a clearly distinct new admission can support another request, the continuity of the same process without an effective interruption can prevent an additional leave from being generated.
For this reason, when a worker needs to request it again in order to care for the same family member, it will be important that the medical documentation makes it possible to prove the new hospitalization, intervention, or circumstance that gives rise to the request.
The leave can continue after hospital discharge
The Supreme Court ruling also addresses another of the controversies that have reached the courts: what happens when the family member leaves the hospital before the worker has used up the five days of leave.
Some companies interpreted that the right automatically ended when hospital discharge occurred, even if the patient continued to need care at home. However, the Supreme Court has rejected this interpretation and has confirmed that leave can be maintained during the recovery period at home.
The key is to distinguish between hospital discharge and medical discharge. The first means that the patient no longer needs to remain admitted in a healthcare facility, but it does not necessarily imply that they have recovered or that they can carry out their usual activities without assistance. Medical discharge, in contrast, determines the end of the clinical situation that justified the need for care.
In this way, if a family member remains hospitalized for two days and subsequently receives discharge with a prescription for home rest, the worker may continue to enjoy the remaining days of the leave while the need for care persists, until reaching the legal maximum.
This criterion is especially relevant in surgical interventions and medical processes that allow recovery outside the hospital. The Supreme Court reminds that the purpose of leave is not only to accompany a patient during their admission, but to facilitate the care they may need as a consequence of the illness or intervention.
Now, however, the leave also does not guarantee full five days when the cause that justified it disappears earlier. If the family member receives medical discharge and stops needing the care that motivated the absence, the right may end before exhausting the five working days. Likewise, a recovery process that lasts longer does not automatically allow the leave to be extended beyond that maximum for the same underlying cause.
Which family members are entitled to request the five days of leave
Article 37.3.b of the Workers’ Statute sets out a relatively broad family scope. The measure can be used when the person who needs assistance is the spouse, the domestic partner, or a relative up to the second degree of consanguinity or affinity.
Within this group are the fathers, mothers, sons, siblings, grandparents, and grandchildren, as well as certain in-laws, including in-laws and brothers-in-law. The regulations also include the consanguineous relatives of the domestic partner, which expands protection to family situations that previously could have been left out of certain work leave permissions.
In addition, the right is not limited exclusively to people with recognized family ties. It may also be requested to care for any other person who lives with the worker in the same home and needs their effective attention, even if there is no relationship between them.
This provision makes it possible to include certain cohabitation situations that do not fit the traditional family model, provided that the required conditions are proven. In these cases, cohabitation and the need for care are fundamental requirements for granting the leave.
The National High Court has also clarified that companies cannot generally require an employee to prove that they live with their parents or other relatives included in the rule, nor force them to prove that they are the primary caregiver. Where there is a protected relationship by kinship, the requirements fundamentally consist of justifying the family link and the medical circumstance that grants the right to be absent.
The situation is different when leave is requested to care for a person with no kinship relationship, since in that case it is necessary to justify that they share a home with the worker and that they require their effective care.
How the five days are counted: working days or calendar days
Another important aspect is the calculation of the leave. The five days are considered working days, not calendar days, so weekly rest days and public holidays on which the employee has no obligation to work should not be deducted from the available working days.
For example, if a worker carries out their work from Monday to Friday and begins the leave on a Thursday, the five days of absence could extend until the following Wednesday, without counting Saturday or Sunday. This distribution assumes that the reason that justifies the leave continues to exist throughout that period.
The calculation may vary in jobs with rotating shifts, work during weekends, or workdays distributed in an irregular manner. In these situations, what matters is identifying the days on which the employee had an effective obligation to provide services, since the leave is used to justify the absence from the job.
Case law has also recognized some flexibility regarding the start time. A ruling by the Audiencia Nacional from September 2024 established that, in the absence of a specific provision in the collective bargaining agreement, the worker is not required to necessarily begin the leave on the same day as the hospitalization or intervention.
This interpretation allows the start of the absence to be adapted to the real care needs of the family member, provided that the leave begins after the event giving rise to the right and while the situation justifying it continues to exist. The possibility of distributing or splitting the days must also be assessed in light of the applicable regulations and the specific circumstances of each request.
In any case, companies may not automatically treat these leaves as five consecutive calendar days when doing so would involve deducting shifts on which the employee did not have to work.
What documentation the company may request to grant the leave
To take the five days, the worker must notify the company and justify the circumstance that causes their absence. The law does not establish a general advance notice period identical for all situations, since some hospitalizations or serious illnesses may occur unexpectedly.
In the case of a scheduled surgical procedure, the advisable approach is to communicate the need for the leave with as much advance notice as possible. If it is a medical emergency, the notification may be made when the circumstances allow, also respecting any provisions that may exist in the collective bargaining agreement.
Among the documents that may be used to justify the absence are hospitalization certificates, proof of surgical intervention, or medical reports that establish the serious illness and the need for home rest.
When the company has already received the admission documentation and the family member needs to continue recovering at home, proof of that circumstance may be requested, especially if there is controversy about the duration of the leave.
However, the right to justify absence does not allow for indiscriminate requests for private medical information from a family member. The documentation must be sufficient to prove the circumstance that gives rise to the authorization, without the need to provide clinical data unrelated to that purpose.
It is also advisable to keep communications sent to the company, especially when it is a second request in the same year. Having the medical justification, the date of the communication, and the response from the human resources department can help facilitate the resolution of possible discrepancies.
What to do if the company refuses to grant a second leave
The Supreme Court ruling has direct consequences for companies that interpreted the five-day leave as something that could only be requested once per year. The automatic limitation to five annual days does not conform to the interpretation of the Workers’ Statute confirmed by the high court.
If a company rejects a second request by alleging only that the employee already enjoyed five days in previous months, the worker may invoke article 37.3.b of the Workers’ Statute and the ruling 753/2026, of 25 September, corresponding to appeal 135/2025.
The advisable approach is to request that the refusal be documented in writing and to keep both the medical justifications and the communications made. The worker may also contact workers’ representatives, a trade union organization, or a professional specialized in labor law to assess the actions that correspond.
In the event of disagreement, the dispute may be referred to the labor and judicial mechanisms provided for the protection of these rights. However, it is advisable to differentiate between a refusal based exclusively on a supposed annual limit, which the Supreme Court has rejected, and another related to the absence of a new independent medical cause or the lack of justificatory documentation, which will require examining the specific circumstances.
The difference between the five days for illness and the four days for force majeure
The leave of five days for family illness should not be confused with another conciliation measure included in the Workers’ Statute: paid absences for urgent family reasons of force majeure.
These last ones are regulated in article 37.9 and allow the employee to be absent when there are unexpected family circumstances related to illnesses or accidents that make their immediate presence indispensable. The legislation establishes that the hours of absence for this reason will be paid up to the equivalent of four days per year, in accordance with what is legally provided and, where applicable, in the collective bargaining agreement.
The main difference lies in that the force majeure leave is designed to address urgent needs that require immediate action, while the five-day leave is linked to more serious medical situations, such as a serious illness, hospitalization, or a surgical procedure with home rest.
In addition, the five-day leave is not subject to the annual limit that does exist for paid absences due to force majeure, as the Supreme Court has confirmed.
This distinction is part of the amendments introduced in Spain in recent years to expand work-life balance rights. The June 2023 reform raised the leave for serious illness or hospitalization from two to five days and extended its coverage to new cohabitation situations, while subsequent judicial decisions have been уточning its application.
The judgment handed down in September 2026 is one of the most relevant rulings in this process, by confirming that workers can apply again for the leave whenever there is a new triggering event, without companies being able to set a general maximum of five days per calendar year. The ruling also ensures that hospital discharge does not automatically put an end to the absence when the family member still needs rest and care at home, although it leaves pending, for a specific assessment, the situation of readmissions derived from the same illness.