Sick leave for anxiety or another mental health problem is, in law, sick leave like any other. There is no special regime, no different pay and no shorter time limit. The diagnosis changes; the rules of temporary incapacity (incapacidad temporal) do not. Here is what the legal text says about when you are paid, how much, for how long and what duties you have, without going into clinical questions. The leave itself is the baja médica.
What a leave is and who is entitled
Article 169 of the General Social Security Act (LGSS) defines temporary incapacity for common illness as the situation where the worker receives Social Security healthcare and is unable to work. The text makes no distinction by type of illness. Judging whether you are unable to work is a matter for the health staff treating you, not for the employer.
To be paid in common illness, article 172 also requires 180 days of contributions within the five years before the leave. While you are on leave your contract is suspended (art. 45.1.c of the Workers Statute): you do not work and you do not receive wages from the employer, unless your collective agreement or contract improves the benefit.
When payment starts and who pays
As in any common illness, the benefit is paid from the fourth day of leave. Days 1 to 3 carry no benefit, unless the agreement or contract improves them. Days 4 to 15 are paid by the employer; from day 16, by the INSS or the mutual insurance body (art. 173.1). The full explanation of that stage is in the first three days of sick leave.
How much you get
The amount is the same as in any other common leave: Social Security publishes 60% of the regulatory base from day 4 to 20 and 75% from day 21. The table and calculations are in how much sick leave pay you get.
An example. Sandra has a contribution base of €1,500 a month (€50 a day) and is on leave for 30 days.
| Stage | Days | Calculation | Amount | Paid by |
|---|---|---|---|---|
| Days 1 to 3 | 3 | 0 | €0 | Nobody, unless an agreement says so |
| Days 4 to 15 | 12 | 12 × €30 | €360.00 | The employer |
| Days 16 to 20 | 5 | 5 × €30 | €150.00 | INSS or mutual body |
| Days 21 to 30 | 10 | 10 × €37.50 | €375.00 | INSS or mutual body |
Total benefit: €885. Working those 30 days, her base would give €1,500. She loses €615.
How long it can last
Article 169 sets a maximum of 365 days, extendable by another 180 when it is presumed that you can be discharged as cured. The benefit ends at 545 calendar days from the start of the leave, on medical discharge, on moving to permanent incapacity, on retirement or on death (art. 174.1). If you relapse for the same or a similar condition within 180 calendar days of discharge, the periods are added together (art. 169.2).
Duties you must keep to avoid losing pay
Article 175 allows the benefit to be denied, cancelled or suspended in these cases:
- If you act fraudulently to obtain or keep it.
- If you work for yourself or for someone else during the leave.
- If you refuse or abandon, without good reason, the treatment prescribed.
- If you miss appointments with INSS or mutual body doctors: not attending suspends the right as a precaution until it is checked whether the absence was justified. Unjustified non-attendance ends the right (art. 174.1).
If you cannot attend an appointment for a good reason, say so and keep proof.
What happens to your job while you are on leave
Temporary incapacity is a ground for suspending the contract (art. 45.1.c of the Statute). The suspension releases you from working and the employer from paying your wages (art. 45.2), but it does not end the contract. Article 48.1 says that, when the legal grounds for suspension cease, you have the right to return to the post reserved for you in these cases. In other words, the leave puts the contract on pause; it does not break it. What happens if there is a permanent incapacity, or what the employer can do if it dismisses you, are different questions with their own rules.
Discharge, disagreement and papers to keep
Up to 365 days, the INSS has the power to issue the discharge through its medical inspectorate (art. 170). If you disagree with a discharge, see what to do if you disagree with a medical discharge. The law sets short deadlines to state your disagreement in some cases, so do not wait.
Keep every certificate and receipt you are given, the copies of appointments with the medical inspectorate and the payslips for the months of leave. They prove the start dates, the appointments you attended and the amount you are owed. If there is later a discharge, a disagreement or an argument with the employer, those are the papers asked for first.
Why your case may be different
- Work-related cause. The law distinguishes common and occupational contingencies, and when payment starts depends on it (art. 173.1). If you think the cause lies in your work, raise it with your doctor and talk to an employment lawyer; neither assume it nor rule it out.
- Collective agreement (convenio). It may top up the benefit.
- Not enough contributions. Without the 180 days there is no benefit for common illness.
- What happens afterwards. If the leave ends with a proposal for permanent incapacity, different rules apply (art. 174.4 and 5).
Dismissal and employer checks during the leave
Two frequent worries have their own article. If you receive a dismissal letter during the leave, read being dismissed while on sick leave. And for what checks the employer may carry out, see what your employer can check during sick leave.
This page is general information and contains no medical assessment. With deadlines or money at stake, speak to an employment lawyer (abogado laboralista) or a trade union.