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How to request a voluntary leave of absence
What is a voluntary leave of absence, how to request it, and what will be the worker's legal situation.
Isabel García
HR Consultant
19 of February, 2025
Any salaried worker has obligations towards their employer. However, there’s a situation where these obligations disappear: the leave of absence. It’s a situation not always known, but one that we cannot lose sight of. At any time we can request a voluntary leave of absence.
Precisely voluntariness is one of the characteristics of this peculiar situation. There can be mandatory leaves of absence, for example if the employee has been appointed to a public office. Another option is agreed leaves of absence. But when the employee requests it, we talk about voluntary leave.
What is a voluntary leave of absence?
Before requesting a voluntary leave of absence, we should know what it’s about. We’re talking about a period of time where workers can interrupt their services to the company. During the leave period, the worker does not receive salary and also does not contribute to Social Security.
Neither does it accumulate seniority time. The employment contract is suspended, on stand-by, but not terminated. It should be noted that the job will only be reserved for one year. After that time, he may move to an equivalent position. However, there are exceptions that extend the period:
- Large family: if the employee is part of a general large family, 15 months will be reserved. If it’s a special large family, the term goes up to 18 months.
- Caring for relatives: when the voluntary leave of absence is due to caring for older family members, who have suffered an accident or serious illness up to 2nd degree. The maximum leave of absence is two years, but time is maintained for seniority and contributions.
- Childcare: in case of maternity, paternity or adoption of children under 12 years old, seniority and contributions also continue to run. It can last up to three years, although as in the previous case the job will only be reserved for one year.
The voluntary leave of absence is contained in the article 46 of the Worker’s Statute. However, its draft is rather brief. As usual, the Worker’s Statute gives the sectorial agreement carte blanche to regulate this professional right according to the sector.
How to request a voluntary leave of absence
There are two requirements to request a voluntary leave of absence. The first one is to have at least one year of seniority in the company. The second requirement would be a period of 4 years from the previous leave, if requested. Logically, these two requirements are added to the approval of our employer.
Voluntary leaves of absence can range from four months to five years. As mentioned earlier, only our position will be reserved during the first year. We have also pointed out that our sectoral agreement may alter these periods and extend them.
When requesting it, it is always interesting to request the voluntary leave of absence in writing for the company. In this document, we will indicate the exact dates that we want to enjoy this leave of absence. No need to indicate reasons, although some will allow us to enjoy certain privileges.
There is no minimum period to do it, but it is always advisable to request it in advance. This way, the company will have time to analyze the request, answer, organize in the absence of an employee, etc. The company will reply in writing, either granting the leave or rejecting it.
Keep in mind that the company can reject the leave, especially if another employee is already in this situation. In addition, companies take advantage to liquidate pending vacations, bonuses or other amounts in case the employee does not return to his job.
As the reintegration date becomes closer – we will delve deeper into this later -, a voluntary leave of absence extension can be requested. The only requirement will be not to exceed the maximum leave period adding the initial leave and the extension. If the first leave was already five years, it could not be granted.
Legal situation of the worker on voluntary leave
On paper, a worker on voluntary leave can do whatever they want. As we said, they will not be entitled to unemployment benefits; but they can work for another company. As long as they do not have an exclusivity clause, they can work for the competition. They can also work in another sector, as a freelancer, etc.
It’s worth pointing out that if they lose the job they have carried out during the leave, they will be entitled to unemployment. It is also important to stress that a company can include workers on leave in a ERE, because the employment relationship exists. Of course, if it is shown that they have been included because of that, the dismissal can be null and void.
Reintegration after voluntary leave
If reintegration occurs 12 months after the leave, the position can be of the same or similar category. When returning to a lower category position, the previous salary won’t be maintained. It is also possible that the company and the employee agree on the position.
Even though voluntary leave has an ending date, it is advisable to request re-entry in writing. It is not a legal requirement, but it is always beneficial to show that the return has been requested. Thus, we will have this justification in case there is any problem.
Like at the time of requesting voluntary leave there is no deadline to do it… unless the collective agreement indicates it. In any case, it would have to be done with advance notice so that the company can organize. It is also a way to avoid problems or disputes upon re-entry.
On paper, you cannot request re-entry before the time of the leave has been fulfilled. Especially, if the first four months have not yet passed. Until the leave is over, you cannot return to the company. However, if the employee requests it, they can agree with the company to advance the end of the leave.
The company is not obliged to accept the early end of the leave. Neither can it demand the employee to rejoin before it ends. The early return is an exclusive right of the employee… with the approval of the company. Remember that you have all the help to manage leaves of absence in your company on the Sesame HR’s human resources software blog.
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