If you want to request a leave of absence, but you have doubts about the consequences you should read this guide. In this guide we explain all the characteristics about this temporary suspension of employment. We also explain the steps to follow to request it.
Did you know about the leave of absence?
The leave of absence is a temporary suspension of the employee’s employment contract. It is requested by the worker. During this period, he is exempt from going to his job. The obligation of the employee to perform his duties is suspended, as is the obligation of the company to pay the employee (including taxes).
After the termination of the leave of absence, the worker has a preferential right of reinstatement to the company. However, this does not guarantee him to keep his job. As an exception, we find cases in which the employer grants a job reservation to the employee under agreed conditions between the two of them.
Characteristics of the leave of absence
- Duration: It cannot take less than 4 months or more than 5 years.
- Seniority: The duration of the leave of absence is not added to the seniority of the worker. However, the employee does not lose his seniority accumulated before this temporary cessation. It will continue to be added to its return.
- Unemployment benefit: You will not be able to apply for unemployment benefit because the leave of absence is voluntary.
- Compliance: The company is obliged to grant it. It cannot unilaterally revoke it.
- Employment relationship with another company: The employee may have another employment contract during the leave of absence. If you were dismissed in this new employment relationship, you would be able to collect unemployment benefit during the leave of absence.
- Comeback: Neither the worker nor the company have the right to demand the comeback of the worker before the end of the leave of absence period. However, they could reach an agreement if they wanted to.
Requirements to apply for voluntary leave of absence
To make this request is not necessary to provide any reason. It can be requested at any time and for any personal cause. The requirements that the worker must fulfil in order to do so are:
- Seniority: You must have been in the company as employee for 1 year at least.
- Previous absences: It is necessary that at least 4 years have elapsed since the end of the last requested leave of absence.
Despite it is not necessary to provide a reason for requesting it, the employee must define its duration. It should also be ordered in advance, as some collective bargaining agreements require a minimum amount of notice.
How to apply for a voluntary leave of absence?
There is no specific form established by law to make the request. However, it is advisable to it in writing. It is usually done through a work letter, a tool that has become a key factor in business communication. To make the letter of leave in an effective way, you should:
- Use a formal greeting: The greeting should inform the reader correctly about the subject.
- Include the reason for the letter at the beginning: We will indicate at the beginning that the topic to be treated is a voluntary leave.
- Be correct: Have a good wording.
- Use neutral language: We will avoid expressions that can be misinterpreted.
- Make your letter specific: It must be short and concise.
- Use the logo and seal of the company for greater professionalism.
- Conclude with a cordial farewell: The farewell must be correct.
To make this application effective, the company’s response granting the worker’s leave is required. The company has the obligation to grant the leave of absence. In the absence of the response of the organization the employee could request a judicial recognition. However, until the resolution of the judicial proposal or until the leave is effective, the worker must continue to provide his services to the company.
Reincorporation to the company
For the reincorporation of the employee to the company to be effective, the employee must communicate his intention to return with at least one month in advance. If not, the worker would lose his right of preference.
The company must respond to this application either by incorporating the worker or by refusing his reincorporation. In the absence of an answer, the situation can be interpreted as a dismissal.
The following situations may occur at the time of incorporation:
- The employer accepts the reincorporation: In this case the company may offer the worker the same position he/she performed or one of similar category. If jobs of the same category were not available, positions of a lower pay category could be offered.
- The company reports that there are no vacancies: The employment relationship will remain in force, even though the incorporation is not made in the agreed period. The worker will have to wait for a vacancy to appear. If the worker is aware of the existence of vacant positions in the company, he could sue the company for dismissal.
- The company refuses the reincorporation: If the refusal is clear, the worker may sue the company for dismissal.
If you still have doubts and you want to request a leave of absence, consult with our specialist lawyers.