Permanent disability due to post-COVID syndrome: diverging court criteria in Spain

Updated on 27 September 2026. We have added the date and identifier of each judgment cited and included 2025 and 2026 rulings showing that the outcome depends mainly on the severity proven in each case rather than on the region. We also cover Law 2/2025 (permanent incapacity no longer ends the employment contract automatically) and the INSS's electronic notifications since 1 September 2026.

If you are living with after-effects of COVID-19 that will not go away (tiredness that rest does not fix, breathlessness, headaches, difficulty concentrating), it is natural to wonder whether you can claim a permanent incapacity pension (incapacidad permanente, often called a permanent disability pension). It is possible, but a diagnosis of long COVID gives you no entitlement on its own. What the Instituto Nacional de la Seguridad Social (INSS, the National Social Security Institute) and, later, the courts assess is how far those after-effects limit your capacity to work and whether that limitation is proven with objective evidence.

What post-COVID syndrome is and why it is hard to assess

The World Health Organization describes post COVID-19 condition (long COVID) as symptoms that usually begin within three months of the infection and last at least two months; the most common are fatigue, shortness of breath and problems with concentration and memory.

There is no list of illnesses that automatically entitles you to a pension. Permanent incapacity requires serious anatomical or functional impairments that can be objectively determined and are foreseeably permanent and that reduce or cancel your capacity to work (art. 193.1 of the Ley General de la Seguridad Social, LGSS, the General Social Security Act). That creates the two main difficulties with long COVID:

• Objectifying symptoms such as fatigue or "brain fog", which do not always show up in a blood test or an X-ray.
• Proving that they are foreseeably permanent. It helps that the law does not rule out incapacity where recovery is medically uncertain or long-term (art. 193.1 LGSS).

Since 1 November 2024 (Law 3/2024), incapacity can be declared without completing treatment or first being on sick leave where the limitations are sufficiently objectified and foreseeably permanent (art. 193 LGSS). And absolute incapacity due to common illness can be claimed even if you are no longer registered as working (not in alta) with Social Security, provided you have 15 years of contributions, three of them within the last ten (art. 195.4 LGSS).

Total or absolute: where the debate lies

Until the regulation envisaged in art. 194 LGSS is approved, the degrees are defined in the twenty-sixth transitional provision of that Act:

With long COVID, the debate is usually between total and absolute. Total incapacity is measured against your specific occupation; absolute incapacity requires that you cannot work with a minimum of continuity and performance even in simple or sedentary tasks.

The difference goes beyond the amount. The absolute incapacity pension is exempt from personal income tax (IRPF) (art. 7.f of Law 35/2006), whereas the total pension is taxed. With total incapacity you can work in duties different from those that caused the incapacity (art. 198.1 LGSS); with absolute incapacity, any work that requires Social Security registration suspends payment while it lasts (art. 198.2 LGSS). In 2026 the minimum absolute incapacity pension is €13,106.80 a year without a spouse and €17,592.40 with a dependent spouse, provided you meet the income limits for the minimum-pension top-up (Royal Decree-law 3/2026, Annex I).

What the courts are deciding

Taken on their own, the judgments summarised below look contradictory: some grant absolute incapacity and others refuse it. Read closely, the difference lies mainly in how severe the after-effects were and how they were proven.

Castilla y León High Court of Justice (Tribunal Superior de Justicia, TSJ), judgment 648/2024 of 24 July (ECLI:ES:TSJCL:2024:3067). It upheld the absolute incapacity that the Burgos Employment Court (Juzgado de lo Social) had recognised for a 57-year-old graphic designer with daily chronic headache after COVID, resistant to treatment, adjustment disorder and attention and memory deficits. According to the Consejo General del Poder Judicial (CGPJ, the General Council of the Judiciary), the Chamber took into account that her job required concentration and screen work, but the decisive point was that continuous daily headaches made it "illusory" to perform any occupation normally, with adequate output and without extraordinary sacrifice.

Cantabria TSJ, 25 April 2025, appeal 189/2025 (ECLI:ES:TSJCANT:2025:735). According to the summary published by Iberley, a nursing assistant with asthenia, breathlessness on moderate exertion and cognitive impairment had total incapacity arising from an accident at work. The Chamber refused absolute incapacity: her limitations prevented her from doing her job, but not other simpler or sedentary work.

Cantabria TSJ, judgment publicised on 30 October 2025 (ECLI:ES:TSJCANT:2025:1035; not final when publicised). The same Chamber overturned the judgment of Santander Employment Court no. 3, which had granted only total incapacity, and recognised absolute incapacity for an administrative worker with breathlessness, tachycardia, fibromyalgia, severe fatigue, mild cognitive disorder and anxiety-depressive syndrome. It held that she could not carry out any activity, not even simple and sedentary work, and that her after-effects were foreseeably permanent because they had become chronic. The Chamber itself noted that other high courts have refused incapacity, granted total incapacity or granted absolute incapacity depending on the severity of each case.

Extremadura TSJ, judgment publicised on 3 February 2026 (ECLI:ES:TSJEXT:2025:1215; not final when publicised). A pharmaceutical sales representative who already had total incapacity, with chronic fatigue, headaches, insomnia, concentration problems and an adjustment disorder, sought absolute incapacity. The court found no proof of a severity making it impossible to perform tasks with little or no physical demand, and considered that her neurological deficit limits her for tasks with a heavy mental load but not for more relaxed ones that do not require full concentration and attention.

What you can take from this

• The differences are explained mainly by the severity proven, rather than by the region. The Cantabria TSJ reached opposite results within a few months because the cases were different: what changes the outcome is how severe the after-effects are and how they are proven.
• Absolute incapacity requires proof that you cannot do light work either. If your limitations mainly concern physical effort or highly demanding mental tasks, the debate will most likely be about total incapacity.
• Evolution over time matters. The better documented the chronic course, the easier it is to argue that the after-effects are permanent.
• There is no Supreme Court rule. We are not aware of any unified doctrine specific to long COVID, and the Supreme Court rarely reviews the degree: it depends on the facts proven in each case.

How to prove it

• Reports that describe limitations, not just diagnoses. "Long COVID" says little; "cannot tolerate more than twenty minutes of sustained activity" or "attention deficit objectified in a neuropsychological assessment" says far more.
• Objective tests that match your symptoms, such as lung function or exercise tests, cardiac studies or a neuropsychological assessment, as your doctors advise.
• Continuous follow-up in primary care and the relevant specialities, showing that your condition persists despite treatment.
• An accurate description of your job: a statement of duties from your employer or the job profile from the occupational health and safety service (servicio de prevención), because total incapacity is measured against the essential tasks of your occupation.
• An expert report, if it adds something new. The opinion of the Equipo de Valoración de Incapacidades (EVI, the INSS medical assessment team) and reports from public health-service doctors tend to carry a lot of weight; a private expert is more persuasive when backed by objective tests.

Common illness or occupational contingency

Most of these incapacities arise from common illness, which requires a minimum contribution period: from age 31, a quarter of the time elapsed since you turned 20, with a minimum of five years and at least a fifth of it within the last ten; under 31, a third of the time since you turned 16 (art. 195.3 LGSS). The benefit calculation base is generally worked out from your contribution bases over the last eight years, to which a percentage is applied according to the years you have contributed, counting as contributed the years you still need to reach the ordinary retirement age; if even then you do not reach 15 years, it is 50% (art. 197.1 LGSS). So, with a short contribution record, "100% of the benefit calculation base" may be less than the average of your contribution bases.

Staff of healthcare and social care centres who were infected at work during the pandemic have a special regime: their benefits are treated as arising from an accident at work (art. 9 of Royal Decree-law 19/2020) and receive the same protection as an occupational disease (art. 6 of Royal Decree-law 3/2021), with a report from the occupational health and safety service confirming the exposure. For everyone else, an infection only counts as an accident at work if it is proven that work was its exclusive cause (art. 156.2.e LGSS).

If the contingency is occupational, no prior contribution period is required (art. 195.1 LGSS), the base is calculated on actual earnings and, if safety measures were lacking, a 30% to 50% surcharge payable by the employer may be claimed (art. 164 LGSS). It is not automatic: in a judgment publicised in September 2026, the Madrid TSJ refused it to a doctor at the Hospital 12 de Octubre with absolute incapacity from COVID caught in March 2020, because the hospital had supplied the protective equipment available amid a general shortage (ECLI:ES:TSJM:2026:10430, not final when publicised).

How to apply and what deadlines apply

1. Start. The procedure may be opened by the INSS itself, at the proposal of the public health service or the Labour Inspectorate, at your request or at the request of the mutual insurer (mutua) (art. 4 of Royal Decree 1300/1995). You can apply through the Social Security electronic office (sede electrónica) or at a Social Security information centre (CAISS). If you have been on long-term sick leave, once you reach 545 days the INSS must assess you within a maximum of 90 days, extendable up to a combined 730 days if improvement is expected (art. 174.2 LGSS); we explain this in what happens after 18 months of sick leave.
2. Medical board. The EVI examines you and issues a proposed opinion that does not bind the INSS; you then get a hearing to make submissions and provide reports (arts. 3 and 5 of Royal Decree 1300/1995).
3. Decision. The INSS has 135 days; if it does not reply, you may treat the application as refused (art. 14 of the Order of 18 January 1996).
4. Notifications. Since 1 September 2026 they are, as a general rule, electronic (Order ISM/541/2026). If you do not open one within ten calendar days, it is deemed rejected and the procedure continues (art. 43.2 of Law 39/2015).
5. Prior administrative claim (reclamación previa). You have 30 days from notification to challenge the decision before the INSS, which has 45 days to reply (art. 71 of the Ley reguladora de la jurisdicción social, LRJS, the Employment Jurisdiction Act). The alternative dispute resolution methods (MASC) of Organic Law 1/2025 do not apply here (art. 3.2).
6. Court claim. You then have 30 days to file a claim with the Employment Court; August and the period from 24 December to 6 January do not count in this procedure (art. 43.4 LRJS). The judgment can be appealed (recurso de suplicación) to the regional High Court of Justice and, where there are conflicting judgments, to the Supreme Court on a point of law (casación para la unificación de doctrina), although the Supreme Court rarely admits this appeal when the dispute is about the degree, because each case turns on its own facts.

What happens to your job

Since 1 May 2025 (Law 2/2025), total incapacity, absolute incapacity and severe incapacity no longer end the employment contract automatically. You have ten calendar days from notification to tell your employer in writing that you want to stay on; the employer then has three months to adapt your job or move you to a vacant, suitable post, and can only terminate the contract, in writing and with reasons, if the adjustment would be an excessive burden, no post is available or you turn down the change (art. 49.1.n of the Estatuto de los Trabajadores, the Workers' Statute). Meanwhile, the contract remains suspended (art. 48.2 ET).

If the INSS expects you to improve, your job is kept open for two years (art. 48.2 ET) and the incapacity can be reviewed until retirement age (art. 200 LGSS). We explain this in the review of permanent incapacity at 24 months and, if you receive unemployment benefit, in can you receive an incapacity pension and unemployment benefit at the same time?.

Common mistakes

• Providing only the diagnosis, without specific, measured limitations.
• Asking only for absolute incapacity: in a court claim it is usual to seek absolute incapacity and, in the alternative, total incapacity.
• Missing the 30-day deadline for the prior claim or not opening electronic notifications.
• Not checking whether your case is an occupational contingency, especially in healthcare.

Shall we look at your case?

If you are on sick leave with long COVID, waiting for the medical board or holding a decision you disagree with, we can go through your reports with you and explain what degree it is reasonable to seek and what deadlines apply. You can book a consultation or write to us from the contact page.

Legislation and sources

• General Social Security Act (consolidated text): arts. 156, 164, 174, 193 to 200 and twenty-sixth transitional provision
• Workers' Statute (consolidated text): arts. 48.2 and 49.1.n
• Employment Jurisdiction Act: arts. 43.4 and 71
• Law 35/2006 on Personal Income Tax: art. 7.f
• Law 39/2015 on Common Administrative Procedure: art. 43.2
• Organic Law 1/2025 on the efficiency of the Public Justice Service: art. 3.2
• Royal Decree 1300/1995 on incapacity for work in the Social Security system
• Order of 18 January 1996 implementing Royal Decree 1300/1995: art. 14
• Royal Decree-law 19/2020: art. 9, infections among healthcare and social care staff
• Royal Decree-law 3/2021: art. 6, benefits for healthcare and social care staff infected with SARS-CoV-2
• Royal Decree-law 3/2026 on pension uprating: Annex I, minimum pensions
• Order ISM/541/2026 on Social Security electronic notifications
• CGPJ: Castilla y León TSJ recognises absolute incapacity for a graphic designer with post-COVID syndrome (18/09/2024)
• CGPJ: Cantabria TSJ recognises absolute incapacity for a woman with post-COVID syndrome (30/10/2025)
• CGPJ: Extremadura TSJ refuses absolute incapacity for a pharmaceutical sales representative with long COVID (03/02/2026)
• CGPJ: Madrid TSJ refuses the benefit surcharge for a 12 de Octubre hospital doctor with absolute incapacity from COVID (24/09/2026)