Law 104 leave between annual leave and sick leave: caregiving purpose, holidays and the risk of abuse

How to apply for Law 104 leave and the employer's powers

First, in order to obtain the leave, the procedure for assessing the severe disability must have been completed, and the relevant certificate must record the recognition provided for under Article 3(3) of Law No. 104/1992, namely the wording “Person with a disability in a situation of severity”.

The employee must then submit an application to INPS and, once entitlement has been recognised, absences taken as Law 104 leave must be notified to the employer in accordance with the applicable company and contractual procedures.

While the leave is an employee entitlement and may not be refused by the employer merely on production or organisational grounds, this does not mean that the employee may disregard all of the employer’s organisational requirements or misuse the benefit.

The employee must exercise the entitlement in accordance with the principles of fairness and good faith, cooperating, so far as possible, with the proper organisation of work. Where practicable, the employee should therefore give reasonable notice and comply with any request to schedule the absences.

The leave must also be genuinely used for the purpose for which it was granted.

For an employee who cares for a family member, this does not mean having to spend every minute beside the person with a disability. Care may also include indirect, ancillary or organisational activities carried out for the benefit of the care recipient, such as purchasing medicines, accompanying the person to medical appointments and treatment, dealing with administrative matters, managing domestic or healthcare needs, and travelling as necessary to reach the care recipient.

The caregiving purpose must, however, remain genuine and objectively identifiable. It is not enough for the activity to be generally useful or compatible with the family circumstances: there must be an effective connection between the absence from work and the needs of the care recipient.

Law 104 leave, annual leave and sick leave

There is no express prohibition on taking Law 104 leave immediately before or after a period of annual leave.

Where annual leave spans two different calendar months, the employee may, in principle, take the days available in the first month before departure and those available in the following month upon returning.

However, each day taken as Law 104 leave must correspond to genuine caregiving needs.

Accordingly, the mere temporal proximity of annual leave and Law 104 leave is not sufficient to establish abuse.

The place where care is provided is likewise not decisive when considered in isolation. For example, the family member may be staying temporarily at a holiday resort and be assisted by the employee in that setting. What matters, therefore, is not the place or period in which the leave is taken, but the actual purpose pursued by the employee.

A different issue arises where the need for care emerges during a period of annual leave already approved by the employer.

Where there is a genuine and urgent caregiving need, the employee may request Law 104 leave in substitution for annual leave. The relevant days must be recorded as Law 104 leave rather than annual leave, while the unused annual leave may be taken at a later date under a new schedule agreed with the employer.

In summary, Law 104 leave – in view of its specific caregiving purpose – takes precedence over annual leave; the employee should therefore submit the relevant request to both INPS and the employer, which will adjust the recorded absence accordingly.

Furthermore, the fact that annual leave, sick leave, leave of absence, statutory leave or other absences occur in the same month may not result in a proportionate reduction of the three monthly days. No pro rata reduction of the leave entitlement is therefore permitted by reason of days not worked due to sickness or annual leave.

When the use of Law 104 leave becomes abusive and what checks are permitted

Abuse arises where an employee uses the leave for purposes unrelated to care, thereby frustrating the purpose for which the benefit was granted.

For example, conduct may be abusive where an employee systematically uses leave days for exclusively personal activities, such as performing other work or taking a trip with no connection whatsoever to the care recipient.

In the most serious cases, misuse of the leave may irreparably undermine the relationship of trust and justify dismissal for just cause. The conduct may also lead to the recovery by INPS of sums unduly paid.

However, not every absence constitutes misconduct, and not every disciplinary irregularity automatically gives rise to liability, which requires a separate and specific assessment.

It is now settled that the caregiver is not required to spend the entire day beside the person with a disability, nor to ensure that the care provided corresponds exactly to the hours during which the employee would otherwise have been working.

According to the Court of Cassation, the assessment cannot be exclusively quantitative; it must also take account of the nature of the care, the specific needs of the person with a disability and the overall context of the activities carried out during the day.

This does not mean, however, that the time factor is irrelevant. The hours actually devoted to care are among the elements from which the court may infer whether the leave was used consistently with its purpose, provided that this factor is not applied automatically or considered in isolation.

In Order No. 1227 of 17 January 2025, the employee had been dismissed for taking five days of leave to care for his father-in-law with a disability, having devoted, according to the findings made, approximately 16 or 17 hours in total to him, representing close to half of the total time. The Court of Appeal had considered that amount of time insufficient and had upheld the dismissal. The Court of Cassation, however, set aside that decision and remitted the case to a different court, because the assessment had been based predominantly on a percentage calculation, without adequately examining the ancillary activities carried out by the employee, such as travel, the purchase of medicines, food and other items required by the family member.

The judgment of the Forlì Court is consistent with the same approach (see Forlì Court, Employment Division, Judgment No. 22/2026 of 28 January 2026). The case concerned an employee who had been dismissed after being observed for several hours at a beach club in Cesenatico while taking Law 104 leave to care for her mother, who was not self-sufficient. The court found that there had been no abuse, holding that the periods during which she was away were limited, not systematic and insufficient to interrupt the continuity of the care, which, viewed as a whole, had remained predominant. The dismissal was therefore annulled and the employee reinstated. Her mere presence on the beach, considered in isolation, did not establish that the entitlement had been used for a purpose other than caregiving.

A different conclusion was reached in the Court of Cassation’s more recent Order No. 13155 of 7 May 2026. In that case, the employee had taken two afternoons of leave to care for his mother with a disability, but had spent only 30 and 38 minutes with her, respectively. The total time attributable to care amounted to 84 minutes out of 480, equal to 17.5% of the leave taken.

For the remainder of the time, the employee had engaged in personal activities and had not shown that he had performed any further tasks, even indirectly, in his mother’s interest. The Court of Cassation therefore upheld the dismissal for just cause, finding that the care provided had been wholly marginal.

It follows from the decisions cited that, although the time factor cannot be treated as the sole criterion, it retains significant weight in the overall assessment. The less time is devoted to direct care, the more important it becomes to determine whether the remaining activities were nevertheless carried out in the interests of the person with a disability and were concretely connected with that person’s care and assistance needs.

However, the burden of proving the facts underlying the disciplinary charge and the dismissal rests with the employer: the evidence must make it possible to reconstruct the employee’s conduct and determine whether, considering the day as a whole, the connection with the caregiving purpose was lost.

Where there are specific elements giving rise to a suspicion that the leave is being used fraudulently, the employer may also instruct a private investigation agency.

In Order No. 17102 of 16 June 2021, the Court of Cassation recognised the lawfulness of investigative checks aimed at establishing unlawful or fraudulent conduct during leave. In the case examined by the Court, the evidence gathered by the investigators had helped to establish that the employee was carrying out activities incompatible with the caregiving purpose, and the dismissal was upheld.

The employer’s monitoring powers are not, however, unlimited. Any checks must pursue a specific purpose, be proportionate to the grounds for suspicion, and respect the employee’s dignity and privacy. Investigative activity may not be used to subject the employee to generalised surveillance or to discourage the exercise of a statutory right.

The boundary between legitimate exercise and abuse does not therefore depend on automatic rules, on the proximity of the leave to annual leave, or on the place where the employee is seen. The decisive question is different: was the absence from work, considered as a whole, genuinely used to meet the needs of the person with a disability, either directly or indirectly?

It is against that concrete connection that both the employee’s conduct and any disciplinary charge brought by the employer must be assessed.