Ariadne Fabiane Velosa
Lawyer at Marcos Martins Advogados
Prior to the Labor Reform (Law No. 13,467/2017)[1], article 134 of the Consolidation of Labor Laws provided that vacation would only be granted by act of the employer, in a single period, within the 12 (twelve) months following the date on which the employee had acquired the right.
Thus, before the new legislation came into force, vacation could exceptionally be granted in two periods, one of which could not be less than 10 (ten) calendar days.
The old law also stipulated that those under 18 (eighteen) years of age and over 50 (fifty) years of age should take their vacation in a single period.
However, after the change in legislation, some paragraphs were added to and removed from article 134 of the CLT. The first paragraph was the one that brought the biggest change:
- Art. 134 – Vacation shall be granted by act of the employer, in a single period, within the 12 (twelve) months following the date on which the employee acquired the right.
- § Paragraph 1 – Provided the employee agrees, vacation may be taken in up to three periods, one of which may not be less than fourteen calendar days and the others may not be less than five calendar days each.
Thus, the new wording of the aforementioned article has given workers greater freedom, in addition to regulating what was already a practice, as it has allowed vacation to be split over the 12 (twelve) months following the date on which the employee acquired the right.
It should be noted that the first paragraph of article 134 of the CLT allows employees to agree to split their vacation into up to three periods, provided that one of them is not less than 14 (fourteen) calendar days and the others are not less than 5 (five) calendar days.
For example, the employee can take 15 (fifteen) days of vacation, then take another 10 (ten) days and in the third period can take another 5 (five) days. However, the employee will not be allowed to take 10 (ten) days of vacation in each of the three periods, as in this case they would not be respecting a period of no less than 14 (fourteen) days.
At this point, it is advisable to register the wishes of both parties, in a form duly signed by the parties, in order to protect both the employer and the employee.
It should be noted that the employee can split their vacation in one year, and in the next, they can take 30 (thirty) consecutive days off, and the periods can be negotiated between employer and employee each year.
It should be noted, however, that the law did not extinguish the possibility of vacation being granted in a single period of 30 (thirty) days, but rather added a new possibility, split into three periods, according to the will of the parties.
Another innovation was the extension of the possibility of splitting vacations to minors under 18 (eighteen) years of age and those over 50 (fifty) years of age.
Therefore, as long as there is no coercion or violation of the employee’s rights, it is possible to split the leave.
It should be noted that, in the split vacation agreement, there will be a restriction on dates, i.e. the employee will not be able to start their vacation in the period of two days preceding public holidays or two days of paid weekly rest (usually Saturdays and Sundays), as provided for in the third paragraph of article 134 of the CLT.
The other rules were maintained, such as the option to sell up to 10 days, known as the “cash bonus”.
From this perspective, it can be seen that the change in legislation was aimed at modernizing the employment relationship, giving greater flexibility and dynamism to employment contracts, which can be negotiated according to the wishes of the employee and the company.
In view of this, in order to guarantee the regularity of all actions within the company, whether in relation to vacations or other employment issues, the ideal is always to have legal support from a firm specializing in this area. In this way, legal advice can help you make decisions that could have an impact on your company.
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[1] BRAZIL. Law No. 13.467. Amends the Consolidation of Labor Laws (CLT), approved by Decree-Law No. 5,452, of May 1, 1943, and Laws No. 6,019, of January 3, 1974, 8,036, of May 11, 1990, and 8,212, of July 24, 1991, in order to adapt the legislation to the new labor relations. Available at: http://www.planalto.gov.br/ccivil_03/_ato2015-2018/2017/lei/L13467.htm. Accessed on: Feb. 19, 2020.
