Sick Leave in Spain (Incapacidad Temporal)

What Is Incapacidad Temporal (IT)?

Incapacidad temporal (IT) is Spain’s temporary disability benefit system — the equivalent of statutory sick pay. It provides income replacement for workers who are unable to perform their job due to:

• Common illness or non-work accident (contingencias comunes): Regulated by the Social Security system, with different rates and procedures than work-related causes.
• Occupational illness or work accident (contingencias profesionales): Recognised illnesses arising from the work activity itself or accidents occurring at or during travel to/from work (in itinere accidents). These carry more favourable benefit rates and shorter qualifying periods.

The IT system is administered by the INSS (Instituto Nacional de la Seguridad Social) or, increasingly, by mutuas de accidentes de trabajo y enfermedades profesionales (mutual insurance societies for work accidents and occupational diseases) — private entities that manage occupational contingencies on behalf of the Social Security system. Employers must affiliate their workforce with a mutua.

How IT Works: The Payment Waterfall

Days 1–3 (Common Illness/Non-Work Accident)

No benefit is due. The worker does not receive salary or benefit for the first three days of sick leave (período de espera), unless the applicable collective agreement provides for employer payment of these days (which many agreements do).

Days 4–15 (Common Illness/Non-Work Accident)

The employer pays the daily sick benefit:

• Day 4 to day 15: 60% of the contribution base (calculated as the monthly contribution base divided by 30)

The contribution base used for IT is the base reguladora, which is the average of the worker’s contribution base over the 12 months prior to the sick leave.

Day 16 Onwards (Common Illness/Non-Work Accident)

The INSS or the mutua pays the daily benefit directly to the worker (or through the employer via payment delegation):

• Days 16–20: 60% of the daily regulatory base
• Day 21 onwards: 75% of the daily regulatory base

Work Accidents and Occupational Illnesses

For work-related causes, the benefit is payable from day 1 (no waiting period):

• 75% of the daily regulatory base from the first day
• Paid by the mutua (not the employer)

The higher rate reflects the greater severity and employer responsibility associated with work-related disabilities.

Employer Obligations During Sick Leave

Salary Supplement (Mejora Voluntaria)

Many collective agreements require employers to supplement the statutory IT benefit so that the worker receives 100% (or a specified percentage) of their net salary during sick leave. Always verify the applicable convenio colectivo. This is a direct cost to the employer and must be included in payroll calculations.

Continued Social Security Contributions

The employer continues to pay Social Security contributions on the worker’s contribution base during the IT period. The employer’s contribution obligation persists even though the worker is not working.

Record Keeping and IT Certification

From 2023, Spain introduced a new IT certification system:

• The worker no longer needs to physically deliver medical certificates (partes de baja, confirmación, y alta) to the employer.
• Doctors issue certificates directly into the INSS system.
• The employer receives electronic notifications via the INSS’s DELTA system or through the Sistema RED.
• The employer must still record the IT absence in payroll systems and continue IRPF withholding at the appropriate rate on the benefit income.

Notification to SEPE

Periods of IT do not require specific SEPE notification but must be correctly reflected in monthly Social Security contribution reports (liquidaciones).

Duration and Extension

IT due to common illness has a maximum duration of:

• 12 months, extendable by 6 additional months if recovery is expected within that period.
• After 18 months, the INSS undertakes a medical review and may:
  • Extend the IT for a further 6 months (total maximum: 24 months)
  • Initiate a permanent disability (incapacidad permanente) assessment
  • Issue a medical discharge (alta médica) — the worker must return to work or challenge the discharge

IT due to a work accident follows the same timeline but with higher benefit rates throughout.

Dismissal and Sick Leave: Protection Rules

A key concern for employers is whether they can dismiss a worker who is on long-term sick leave. Spanish law distinguishes:

Objective Dismissal for Absenteeism

Article 52(d) ET allows objective dismissal when absences exceed defined thresholds:

• 20% of working days in two consecutive months, or
• 25% of working days in any four non-consecutive months within 12 months

However: For calculating the threshold, days of IT do not count as absences if the IT period exceeds 20 consecutive days. This protection was introduced to prevent penalising workers with extended serious illnesses.

Discriminatory Dismissal and Disability

If the reason for dismissal is the worker’s illness or physical/psychological condition, and that condition is assimilated to a disability under EU law (long-lasting functional limitation affecting participation in professional life), the dismissal may be declared null (nulo) rather than merely unfair — triggering mandatory reinstatement and full back pay.

The CJEU’s Daouidi and subsequent decisions have shaped Spanish jurisprudence on this point: dismissing a worker while on long-term IT for a condition with uncertain recovery prospects may be null under anti-disability discrimination principles.

Disciplinary Dismissal During IT

A worker on sick leave can be dismissed for disciplinary reasons (serious misconduct unrelated to the illness itself). However, if the employer chooses to terminate on disciplinary grounds, full disciplinary procedure must be followed and the ground must be entirely independent of the illness.

Return to Work

When the worker is discharged (alta médica) — either by the GP, INSS, or mutua — they are obliged to return to work on the next working day. The employer must reinstate them to their previous position or an equivalent one. If the worker’s previous position has been substantially modified during their absence, they may have grounds for a constructive dismissal claim.

Frequently Asked Questions

Can an employer request proof that a worker is genuinely sick? The employer cannot compel the worker to disclose their diagnosis (medical privacy). The employer can, however, arrange an independent medical examination through the mutual insurance society or an occupational health doctor. Since 2023, the INSS system provides the employer with the expected duration of the IT process (not the diagnosis), enabling better workforce planning.

What happens to bonus and incentive pay during sick leave? The statutory IT benefit is calculated on the contribution base, not gross pay including variable components. Production bonuses that are genuinely variable may not be payable during IT periods if the collective agreement does not specify otherwise. Fixed-variable hybrid remuneration requires careful analysis.

Can a worker on sick leave work for a different employer? Generally no. Working while on IT benefit is incompatible with the stated inability to work and may result in loss of benefit, repayment obligations, and disciplinary action (potentially up to dismissal). Some nuanced exceptions exist for IT granted for a specific activity where the worker is multi-employed and still capable of performing a different type of work.

What is the MEI surcharge impact on IT benefits? The MEI surcharge is paid on contribution bases during IT in the same way as during active employment — it does not affect the benefit calculation but does form part of the employer’s ongoing Social Security cost during the absence.

What if the worker does not return after the IT period ends? If the worker fails to return to work after receiving a medical discharge and does not request review of the discharge decision, the employer may treat the absence as unjustified. After required notice, the employer may proceed with dismissal for abandonment of post — though proper procedure and documentation are essential to avoid an unfair dismissal claim.