I’m self-employed and on medical leave for depression. Can my business stay open?

An open hotel, six months of benefits, and an unanswered question

The case took place in León. A self-employed man who, together with his wife, was a director of the company that operated a hotel was sanctioned by Spain’s National Social Security Institute (INSS). The sanction was the loss of six months of temporary incapacity benefits. He paid €17,156.30 into the account of the General Treasury of Social Security. The administration maintained that he had taken part in managing the business while on leave. ^[3]

The hotel had employees. The man had filed declarations identifying the people in charge of management. An inspection took place, and there was a dispute over who performed certain tasks. The Social Court in Ponferrada overturned the sanction.

On January 26, 2026, the High Court of Justice of Castile and León upheld that decision. The facts established in the case did not show that the man had worked personally during the periods at issue. Being a company administrator and keeping the hotel open were insufficient to prove fraud. Judgment 97/2026, appeal 1883/2024, ECLI:ES:TSJCL:2026:127. ^[3]

The ruling should not be read as permission to run a business as usual while on medical leave. The court decided a specific sanctions case. It did not decide whether someone with depression can work. Its relevance to other families is more straightforward: If work is attributed to the owner, it matters what the evidence shows the owner did personally, beyond what the business did. ^[3]

The fairness question worth discussing: illness does not cost everyone the same

A self-employed person may leave a consultation with medically justified leave and two questions the medical certificate does not answer: “Who will take care of my customers tomorrow? How will I pay the rent on my business premises?”Hiring someone costs money. Closing may mean losing orders that will not come back when the business reopens. Someone working alone may have no one to hand the keys to.

A Spanish finding deserves attention. According to an AIReF study published in 2026, in 2024 self-employed workers began fewer episodes of sick leave for non-occupational conditions per 1,000 workers registered with Social Security than employees did. Their leaves lasted longer on average, about 112 days compared with 42 days. ^[4]

The figures cover illnesses overall and are not specific to mental health. They do not show that self-employed people get sick less often, that they all delay taking leave because of money, or that employees abuse leave. They do raise a question about the barriers each group faces when they need to stop working because of illness.

The public benefit is also calculated on the basis of a social security contribution base, separate from lost sales or the cost of replacing the owner. On standard leave for a non-occupational illness, if eligibility requirements are met, the benefit is 60% of the applicable calculation base from day four through day 20 and 75% from day 21 onward. ^[5]

Since October 21, 2026, the general rule for Spain’s self-employed workers’ scheme has used the contribution base for the second month before the leave began, with exceptions for recent registrations. For example, for leave starting in November, the general reference month is September. ^{[6], [7]}

My position is this: Oversight of a public benefit is legitimate. Expecting a self-employed person to let their business fail in order to be believed about their illness would not be a medical standard.The reverse matters too. Needing income does not make every activity compatible with medical leave. Fair treatment in both situations requires examining the facts. ^[2]

“My business billed customers while I was on leave.” What does that prove?

Consider three fictional examples. In all three, there is financial activity during leave. What needs to be established differs:

There is no reliable rule that says, “I can answer email as long as I don’t go to the premises.” What the person did and under what circumstances matters. An attorney assesses the legal significance. A psychiatrist does not certify who sent a message or authenticate an invoice. The psychiatrist’s role is to explain which abilities were affected and whether the established facts are consistent with the limitations described. ^[2]

There is also an administrative step to be aware of. For self-employed workers required to file a declaration of business activity status, Spain’s Social Security administration says it must be filed within 15 days after medical leave begins, identifying who is running the establishment or reporting a temporary or permanent cessation of activity. ^{[1], [8]}

Official information lists exceptions, including economically dependent self-employed workers and certain agricultural workers. Failure to file can suspend the start of payments. It is worth checking what applies to your case with the administering agency or the mutual insurer before a dispute arises. ^[1]

What a forensic psychiatric assessment can establish that an invoice cannot

Consider a self-employed tax adviser experiencing a depressive episode. In an interview, she may explain her work clearly and remember her main clients’ names. The question is different: On the date she was cleared to return to work, could she review 30 cases with deadlines, spot errors in similar documents, and handle interruptions without losing track?

A report that only says “she has depression and cannot work” leaves that question unanswered. A finding of fitness based solely on her ability to hold an orderly conversation is also insufficient. A forensic assessment of work capacity must connect clinical findings to job tasks, identify abilities that remain intact, and cross-check sources. ^[9]

In a case like this, I would focus on three issues:

1. The work she personally did before becoming ill. “Self-employed” describes a work arrangement. I need to know what she did herself, what she already delegated, what deadlines she faced, and what could happen if she made a mistake. Managing a schedule, supervising electrical installations, and driving passengers make different demands. ^[10]

2. What changed and when. I would reconstruct the onset of symptoms, treatment, course, and specific changes in functioning. Was trouble concentrating documented near the date in dispute? Did her mood improve while drowsiness continued to affect safety-sensitive tasks? An examination today cannot, by itself, reconstruct her condition three months ago. ^[9]

3. What evidence supports the limitation and what calls it into question. I would review reports and documented handovers alongside any evidence of work she did personally. If she continued to perform the same complex tasks regularly while reporting that she could not do them, the opinion must address that discrepancy. If someone else took over, that should also be clear. The conclusion may support or contradict the claimed limitation, or the evidence may be insufficient. ^[9]

When indicated, an attention test can help assess a specific difficulty. A score alone cannot establish whether someone can perform the tasks of their job. ^[9]

One distinction matters especially: financial pressure may explain why someone tried to keep working. It cannot establish whether they were clinically able to do so. If the claim concerns lost revenue, that is a financial calculation beyond what a depression scale can tell us.

If the mutual insurer or INSS questions your leave, what should you do first?

Read what is being disputed before commissioning a report. A medical clearance based on improvement, a decision suspending benefits for alleged work, and a disagreement over the benefit amount are different matters. The claim, the evidence needed, and the deadlines may differ. Discuss the notice with a labor attorney or a Spanish labor relations adviser (graduado social) before waiting for an expert report. ^[11]

Related reading: What to do if you are cleared to return to work after anxiety or depression.

For an initial assessment, four well-chosen documents are more useful than an entire folder with no dates:

• The decision and proof of notification.
• Clinical reports from around the period in dispute.
• A brief description of your usual work.
• If relevant, the business activity declaration and legitimate records that help establish who did which tasks. ^[8]

You do not need to send identifying customer information or complete medical records by messaging service for the initial consultation.

When is an expert assessment worthwhile? When the disagreement turns on a specific medical question: whether limitations on the date of clearance still prevented essential job tasks, whether treatment effects affected safety, or whether an earlier report overlooked a decisive part of the work. If the only dispute is who signed an invoice or which base the administration used to calculate the benefit, I would not recommend paying for a psychiatric report as the first step. ^[9]

Do you need a forensic assessment of your capacity to work?

If you are self-employed and received a decision questioning your leave for anxiety or depression, or you are the attorney handling the case, the first step is to identify the date in dispute, the tasks the job required, and what the report needs to clarify.

Dr. Marc Agraz, a physician specializing in psychiatry and an expert witness, conducts independent assessments of functional capacity, medical leave, and clearance to return to work. In-person consultations are available in Lleida , and online assessments are available when appropriate for the assignment. The initial review helps determine whether an examination and a full expert opinion are needed. It does not guarantee a benefit or a court outcome.

General information on Spanish law and practice. If a decision carries a deadline, consult a labor attorney or Spanish labor relations adviser. Requesting an expert assessment does not replace taking that step.

Sources and documentation