Vacations are here... and with them, many questions that can lead to conflicts if they are not managed with legal rigor. Although they are one of the most deeply rooted rights, vacations continue to generate more problems than we imagine. 30 calendar days or 23 working days? Can they be paid if they are not taken? What if I am on sick leave?
As the calendar moves towards July, the usual doubts arise: how are vacation days calculated, when do they expire, and what if the worker is on sick leave or has changed working hours? Believe it or not, these are questions that continue to generate conflicts in many companies.
How many days is a worker entitled to?
The law is clear: the minimum entitlement is 30 calendar days per year, which is equivalent to 2.5 days per month worked. Yes, Sundays and holidays are counted. The same rule applies to both full-time and part-time contracts. The only difference is the amount of pay.
Short contract? Then the entitlement will be proportional: two months worked, five days of vacation. And if there are novations in the working day (for example, half a year full time and half part time), the days are not reduced, but the remuneration of the vacation period can be adjusted according to the time worked in each modality.
When should they be taken?
The ordinary period runs from January 1 to December 31. Unless the agreement states otherwise, vacation cannot be carried over from one year to the next, nor accumulated, nor substituted by money (except in the case of definitive sick leave of the employee).
The Statute requires that the dates be fixed by mutual agreement and at least two months in advance. And be careful: if a general calendar is published and more than 20 working days go by without contesting it, changes can no longer be claimed.
Recommendation: Always leave a written record of the agreement to avoid accusations of unjustified absence.
What if there is medical leave?
A distinction must be made here:
- If the incapacity derives from pregnancy, childbirth or breastfeeding, vacations can be enjoyed even if the calendar year has already ended.
- If the cause is different (accident or common illness, for example), the term to enjoy them is extended to 18 months from the end of the year in which they were generated.
- If the leave ends in permanent disability, the vacations not taken are paid.
How are they paid?
During vacation, the salary must reflect the usual average, not just the fixed part. The Supreme Court has made it clear that night, holiday or presence bonuses must be included if they are customary. The key? Having received them for at least six months during the previous year.
And if the salary includes variable parts, a proportional average must be calculated for the payment of the rest month.
What if they have not been enjoyed at the end of the contract?
In that case, the company must pay them in severance pay and continue to pay contributions for those days. In fact, the right to claim unemployment benefit does not begin until the end of the paid vacation days not taken.
Can a worker really disconnect?
Yes. And he/she must. Sending emails or waiting for calls during vacation is a bad practice that can end badly. The right to disconnect is protected by law and any time worked on vacation is considered effective time, which can even generate overtime.
- Attention. Employees cannot be penalized for not answering e-mails, calls or messages during their rest period.
Do vacations expire?
Yes, if they are not taken within the calendar year. But be careful: the Court of Justice of the European Union has reminded us that if the employer does not prove that he has offered to take the vacation, it does not expire. However, there is a period of one year to claim them.
Planning after the summer
At the end of August, it is advisable to review which employees have used up their leave and who have a balance pending. In these cases, it is advisable to agree as soon as possible to take them before December 31. In addition, if an employee has taken more days than accrued (for example, 30 days in August, but leaves in October), these days will be deducted from the severance pay.
For further information, please consult with Labor consulting
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