by Fátima Vera, Lawyer at Lexland Abogados

In just a few months we will finally enjoy our long-awaited and well-deserved summer holidays. At the moment we are probably already planning on where to go, some of us might even be making early reservations in order to save some money.

What would happen, however, if you got ill right before or even during your holidays and you found yourself in the situation of temporary disability? Besides the economic damage that might cause the cancelation of our reservations, could we ask our boss to let us enjoy our holidays some other time?

Until just recently the Spanish law stated that in cases in which the holidays coincided with a temporary disability, the employee was not entitled to enjoy some extra days off. This was only possible in the case of maternity leave if there were still some days left that year.

Furthermore, if the contract of an employee on sick leave ended, he was entitled to be paid for the holidays accrued but not taken in the corresponding year. This means that until just recently it was not possible to claim for the payment of the vacation period accrued but not taken.

Nevertheless, the legal situation on this issue has changed radically due a decision of the European Court of Justice (ECJ) on 20^th January 2009.

From now on, employees on a long term sick leave are able to carry over their accumulated holidays to the subsequent year. Therefore, you can say that, holidays do not expire any more.

In relation to the above, the Spanish Social Court should now review its prior legislations as the ECJ takes a different view on this issue and does not seem to have established any limits on the number of years an employee is able to carry over his holidays. In addition to that there have also not been taken any decisions regarding the compensation for accrued but untaken annual leave.

The ECJ decision is likely to increase termination costs of the employment contract, especially when employees have been off sick for an extended period. This would mean that Spanish employers may have to consider if they can limit their liability by terminating employment contracts before the employees’ temporary incapacity extents for too long.

Finally, we should not forget that the new European legislation may be vulnerable to fraud and therefore cause serious prejudices to the company.

The summer holidays are coming closer and more than ever it should be in the employers´ interest to watch their employee’s health.