On May 1, 2025, Law 2/2025 of April 29, which modifies the Workers' Statute and the General Social Security Law, regarding the termination of the employment contract due to permanent disability, came into force. This Law eliminates the automatic termination of the employment contract of people declared to be in a situation of total, absolute or severe disability.
This regulation responds to the commitment made by the Government to eliminate discrimination based on illness, and to the stated objective of guaranteeing the right to equality in employment for people declared to be permanently incapacitated.
Under the new regulations, workers declared to be in a situation of total, absolute or severe disability have a period of ten calendar days to inform the company of their decision to maintain or not the employment relationship, and if they decide to maintain it, the company must, within a period of three months, make reasonable adjustments to the job or, failing that, offer a vacant and available job, in accordance with the professional profile and compatible with the new situation of the worker.
Thus, the possibility of terminating the employment contract after the declaration of permanent disability is relegated, exclusively, to two circumstances: the first, to the will of the worker, through their expression of not wanting to keep the relationship alive, and the second, to those cases in which it is not possible to make reasonable adjustments because they constitute an excessive burden for the company, when there is no vacant and available job position, in accordance with the professional profile and compatible with the new situation of the worker or when, having such a possibility, the worker rejects the change of job properly proposed.
However, the reform raises many practical questions: what should we understand by reasonable adjustments?, what is excessive workload?, or what is a job that is in accordance with the professional profile?
The regulation, except for the case of companies that employ fewer than twenty-five workers, is silent on these issues, does not offer a closed delimitation of these, so what it offers is legal uncertainty for operators, and leads us to expect a future jurisprudential construction.
Furthermore, what happens when an employee declared permanently disabled remains silent within ten calendar days of receiving notification of the disability ruling? Can this be interpreted as a tacit waiver of the right to continue the employment relationship? We must wait for judicial practice to clarify and resolve all these questions.
On the other hand, following the entry into force of Law 2/2025, the objective termination of employment contracts due to supervening incapacity has become particularly important, as it can be the most appropriate course of action when, after the company has implemented reasonable adjustments to the workplace, the employee fails to adapt to them or demonstrates insufficient performance. In such a scenario, the company could opt for the objective termination of the employment contract due to supervening incapacity, provided that the requirements established by legal doctrine and jurisprudence for its valid application are met. These requirements are that the incapacity be objective, of sufficient magnitude, permanent, involuntary, and that the company has attempted, prior to making the termination decision, to implement reasonable adjustments to the workplace or to relocate the employee.
Finally, as a point of reflection, it should be noted that once again we see how the responsibility for guaranteeing the effective protection of the most vulnerable groups, which essentially corresponds to public authorities and public sector entities by virtue of constitutional mandates, is being transferred to the private sector. This is because the current anti-discrimination policy, which aims to guarantee the maintenance of employment for people declared to be permanently disabled, is implemented, in practice, by transferring to the company the obligation to assume additional costs through job analysis, redesign of functions, investment in material resources, internal reorganization, among others.
Marina Ruiz Juan
Intern of Labor Department
