Opinion of the Ministry of the People’s Power for the Labour Social Process on the granting of holidays

Juristips of Girán Abogados & Asociados

Background to the Opinion

On 18 September cigarrera Bigott consulted the Ministry of Labour on the following questions:

Can workers who have remained active and who have served the time required to apply for the enjoyment be granted the enjoyment of the holiday at the present time?

On 21 September 2020, the Ministry of Labour answered the question posed by Opinion CJ No. 01, and did so as follows:

Sources of law considered by the Opinion

First of all, it should be noted that the Opinion welcomes as the source of the law ILO Convention 132, which in Article 10 thereo provides:

The time at which leave will be taken, provided that it is not fixed by regulations, collective agreements, arbitration awards or otherwise compatible with national practice, shall be determined by the employer, after consultation with the employed person or his representatives.

When setting the time at which the holidays will be taken, account shall be taken of the demands of the work and the opportunities for rest and distraction available to the person employed

Secondly, the Opinion takes into account the provisions of the Decree of the National Executive No. 4160 of 13/03/20 declaring the State of Alarm to attend to the Coronavirus Health Emergency and, among other things, prohibiting assistance to the workplace, except in the cases of exception provided for.

Finally, the Opinion addresses the provisions of the LOTTT on the interruption of leave for reasons not attributable to the worker:

Opinion Conclusions

Taking into account the above regulatory provisions and their intention, spirit and purpose, the Opinion concludes as follows:

  1. The quarantine period does not constitute a day off, vacation or public holiday, but is a public health measure, a health emergency with a mandatory preventive confinement phase; complete closure of non-essential activities.

Therefore, the worker cannot be required to use his or her holiday during quarantine, if it is decided that they do not attend work.

This first conclusion is very important since it implicitly establishes the category of workers referred to in theOpinion: to those who are not working because their respective workplaces are closed and without work activity, so to be ordered by that Alarm Decree.

  • Therefore, they are partially suspended (the holidays), for the duration of social isolation, linked to the employer’s ability to organize and direct the dates of granting leave to his workers,since they may not be granted or compensated in that period.

The Opinion certainly recognises that it is the employer’s right to organise the dates of granting leave to its workers, by referencing the annual programming to be carried out in any workplace, but limits that power by prohibiting those days of assus being imputed to the period of forced confinement.

  • According to the interpretation of that Alarm Decree, the Opinion continues. we are not in the presence of a time for recreation or that allows the worker to give adequate use to his free time, coupled with the fear of the spread of the virus the schools were closed, with the family having to help schoolchildren in distance education.

So the provisions of Article 190 of the LOTTT shall apply and the holidays shall be interrupted as a fact not attributable to the worker:

Article 190.

Holidays which are interrupted by facts not attributable to the worker shall be reactivated when such circumstances cease.

This consequence applies both to workers working in workplaces who are without any work activity, and to those working in activities expressly exempted by the Alarm Decree.

  • Finally, employers and workers are encouraged to negotiate a new date for effective enjoyment, thus recognizing the principle of autonomy of the will of the parties.

Our comments and recommendations

Although the Opinion is quite ambiguous and does not expressly establish which category of workers it is referring to, it is nevertheless possible to draw from its text some important conclusions:

  1. The Opinion essentially stresses that rest days, holidays or holidays should not be allocated to the confinement period, since it is a public health measure established in the Decree of the State of Alarm to attend to the coronavirus emergency. In this sense, it establishes a prohibition on counting un laboured days during the confinement period to the holiday period.

The Opinion therefore does not refer to workers who are not in confinement, who are working in person during the pandemic period, such as those in the health sector, food issues, public services and so many others. Nor does it refer to those workers who – even in confinement – are working in telework and who also meet their working hours and bear in addition to the burden of intellectual work, domestic activities of care and care of the home and family.

  • In our view, it is not the intention of the Opinion to prevent these workers from enjoying their holiday season, provided that the following assumptions arise:
  1. That the worker is doing effective work either remotely or in person.
    1. That the worker has an uninterrupted year of services.
  • This is reinforced in the opinion when it states “employers and employers and workers are encouraged to negotiate a new date for the enjoyment of the holidayseffectively”.

Thus, in principle, the worker may apply for his holiday and enjoy them, provided that he does so at the legal opportunity to do so and enters into an agreement between the parties, since although lotTT provides that companies must guarantee not only the right to paid leave, but also to an effective enjoyment thereof, understanding that , prolonged rest for the physical and mental recovery of labour burdens and the use of this time at the free disposal of the worker, whether intended for family sharing or personal recreation, is no less true that the obligations fulfilled remotely or in person, also require an annual rest, beyond the worker being able to travel or move to other destinations.

Workers who are providing their services in an entity that is exempt from suspending their activities and who continue to provide services during the State of Alarm can enjoy their holidays provided that it is documented that they have been justifiably requested, since there is no doubt that the difficult times we are experiencing, coupled with labor responsibilities, have a detrimental effect on health , and therefore, time without job responsibilities is important to mitigate this effect, even if there is a restriction on free movement and the different means of communication and public spaces for rest or recreation are limited.

As agreed by the Opinion, the holiday period “performs a restorative function that allows the worker torest both physically and “spiritually”, which are freed from the daily routine of the workload”.