The manner in which employees benefit from vacations or, if they do not benefit of vacation time during the year, how to pay or recover unpaid vacation days, are issues that have raised quite a few questions over the years. Find below the rules stipulated by the Labor Code and how they are implemented in practice.
The right to vacation and its planning
The Labor Code states the intangibility of the right to paid vacation, which is guaranteed by the legislation in force, and some legal acts of reassignment, waiver or limitation are prohibited. Employees that were absent for a whole calendar year, due to medical leave or unpaid vacations, are not entitled to paid vacation.
The Labor Code stipulates the obligation to schedule the vacation , with individual or collective scheduling options. The schedule is made by the employer, after consulting the employees and in compliance with the following rules:
- collective appointments cannot be made within intervals of less than 3 months;
- individual appointments may be made for an effective date or for a period which shall not exceed 3 months;
- for both of the above situations, the employee may request that the vacation must to be taken at least 60 days before the date of the actual departure on vacation ;
- if the appointment is made in installments, the employer must ensure that employees take at least 10 working days of uninterrupted vacation in a calendar year.
As written above, vacation cannot be waived, and any limitation on the employee’s right to take the vacation but also a possible waiver of the employee’s right or being illegal.
Duration of vacation
The duration of the vacation is of minimum of 20 working days / year. This can be increased by agreement of the parties, according to various criteria (eg experience in the company), which can be negotiated by employers with employees and must be mentioned in the company’s Internal Rules or Collective Labor Agreements.
There is no maximum period of vacation, this aspect being left to the discretion of the employer.
The allowance received by the employee and its payment
The employee on vacation must be paid. Throughout the vacation, the employee is entitled to a fee at least equal to the basic salary in the employment contract, plus the permanent bonuses provided by it.
Another calculation formula provided by the Labor Code for establishing the value of the holiday allowance is the daily average of the salary rights earnt in the last 3 months prior to the one in which the vacation is taken, multiplied by the number of working days of vacation taken by the employee.
Normally, both calculation formulas should reach the same value but there may be fluctuations in more special cases. However, the allowance may not be less than the salary and permanent bonuses from the employment contract.
The payment of the holiday allowance must be made at least 5 working days before the employee goes on vacation . This aspect is not respected by most employers, who are satisfied with making payments in the normal system, advance and / or liquidation, even if the employee is on vacation. This practice, even if it does not comply with the law, is accepted by the Labor Inspectorate.
Interruption of the holiday
The vacation may be interrupted. The interruption can be done on the initiative of the employee but can also be done by the employer, if there is a situation that requires the presence of the employee at work. If the interruption of the vacation is made on the initiative of the employer, he must compensate for all the expenses occasioned by the employee’s return to work, as well as any damages suffered by the employee due to the interruption of the vacation.
Taking a vacation
The vacation must be carried out in kind, its effective realization being imperative. There are no other provisions that may be applicable during the performance of the employment contract between an employee and an employer, any other attempt to compensate in cash for the days not taken, during the performance of the employment contract being illegal.
Recovery of unperformed vacations is made if, for various reasons, the employee has not been able to take the vacation within 12 months of a calendar year. The vacation may be recovered within 18 months of the end of the year for which it is due.
Payment in cash for days of unpaid vacation can be made only upon termination of the employment contract between the employee and the employer.
Cancellation of the right to request vacation
The right to request the actual performance of the vacation days expires after 18 months from the date of the end of the calendar year for which the vacation was due. These provisions are regulated by the Labor Code.
If after this period the employee still has days off, they can only be compensated in money, at the end of the employment relationship with the employer.
The right to benefit from the monetary compensation of the days of unperformed vacation expires after 3 years, of incidence being the provisions of the Civil Code regarding the extinctive prescription.
Note: The text is valid on the date of its publication, is for guidance purposes and is an interpretation of the specialists of the company Cont Consulting, without intending to replace the legal provisions in force. We are not liable for any damages caused by the use of this material for legal purposes or as evidence in any dispute.