Law 2/2025 establishes that, upon receiving notification of the resolution that qualifies permanent disability (total, absolute or severe disability), the worker must express in writing to the company his or her willingness to maintain the employment relationship, as stated in the new article 49.1.n) of the Workers’ Statute. Even so, it is possible that, due to ignorance of this recent legal change or lack of advice, many workers exhaust the strict deadline of ten calendar days without having yet sent the formal communication to their company.
In this sense, the end of automation does not imply that the worker is protected without doing anything. That is, the employee must step forward and act quickly so that the contract enters a suspension phase and the company assumes the legal obligation to adapt his position or relocate him.
What happens if 10 days pass and the worker does not say anything to the company
In cases in which Social Security notifies the resolution of permanent disability, the clock starts ticking and the responsibility for the first step falls solely and exclusively on the employee. Experts explain that, as long as a formal communication is not sent, the law assumes that the worker resigns from his position, enabling the company to terminate the contract without further formalities. To understand this critical phase of the regulations, the following points must be taken into account:
- The worker has a period of 10 calendar days from the date on which he is notified of the incapacity resolution to communicate his decision. As these are calendar days, the counting does not stop and includes Saturdays, Sundays and holidays.
- Unlike a simple verbal notice or a telephone call, the law explicitly requires that this willingness to maintain the employment relationship be expressed “in writing” to the company. To avoid problems, it is recommended to use means that leave a reliable record of the communication, such as sending a burofax.
- Silence in this case is legally interpreted as a renunciation of the right to retain employment. If the letter is not sent within the deadline, the worker cancels all the protection that the new law offers against dismissal.
What should the company do after receiving the communication?
Once the worker has expressed in writing his or her willingness to maintain the position in a timely manner, the company can no longer use the Social Security resolution to use it as if it were a dismissal letter. During this process, the employment contract remains suspended with the right to reserve the job.
The company then has a maximum period of three months to make “reasonable adjustments” to the current position or seek a change to an available vacant position that is compatible with the employee’s new situation. As an added factor, during this waiting time, which lasts a maximum of three months, the worker will receive the Temporary Disability subsidy to avoid gaps in their economic protection.
Meeting the deadline does not guarantee employment in the event of an “excessive burden”
Complying with the 10-day procedure forces the company to act, but it is not an absolute guarantee of permanence. The company may only proceed to definitively terminate the contract if it justifies in writing that the adaptations represent an “excessive burden” or that, verifiably, there are no vacancies.
To determine this excessive burden, aspects such as the size of the company, its economic and business resources, and public aid or subsidies that can alleviate the expense will be evaluated. In the particular case of SMEs with fewer than 25 workers, the law establishes a clear economic criterion: the burden will be considered excessive if the cost of adapting the position exceeds the compensation for unfair dismissal of that worker or the equivalent of six months of their salary.