Vacation is a right guaranteed by the Federal Constitution, considered an annual rest period, which must be granted to the employee after exercising activities for 12 months, called the “acquisitive” period, and must be granted within the 12 months following the acquisition of the right, this being called the “concessive” period.
However, with the current COVID-19 scenario, many doubts have arisen regarding the labor rights of employees and employers, especially in relation to the granting of vacations.
Therefore, with regard to the anticipation of vacations, according to the rules in the legislation, it would be necessary for the employer to notify the employee, in writing, at least 30 days in advance of the “vacation notice”, however, in the face of this Covid-19 pandemic, these requirements may be relaxed.
It is important to mention that there is no punishment in the CLT for employers who fail to comply with this rule, yet the competent authorities, as well as the Labor Court, will be reasonable about companies failing to comply with the deadline in the face of the current emergency.
Furthermore, under the terms of article 142 et seq. of the CLT, it is possible for the employer to grant leave to all employees or just to a sector or department. However, the legislation stipulates that in order to grant collective vacations, the company must notify the Ministry of Economy and the employees’ union at least 15 days before the start of the vacation, and these deadlines should also be reconsidered in light of the global systemic crisis.
In light of these issues, the federal government is considering easing the measures for employee vacations, whether it’s bringing vacations forward or granting collective vacations.
With regard to early vacation, the procedure is that, temporarily, the employee must be notified within 48 hours. This also opens up the possibility of granting proportional vacation time to workers who have not yet completed the 12-month acquisition period.
In fact, it should be noted that vacations can be split into three periods, as long as one of them is not less than 14 calendar days and the others are not less than 5 days each.
With regard to collective vacations, the government is proposing to temporarily simplify the procedures so that the employer notifies the employees within 48 hours, as well as dispensing with the need to notify the unions and the Ministry of Economy.
The government is also considering allowing employees who have not yet completed their vesting period, for example employees who have been with the company for six months, to have their vacations brought forward.
In total, there are seven measures that will override the Consolidation of Labor Laws and will remain in place until December 31, 2020, when the State of Public Calamity ends. These changes to employment relations could be submitted to the National Congress by provisional measure or bill, which has not yet been decided; everything will need the approval of the deputies and senators.
Created: March 20, 2020
By: Dr. Ariadne Fabiane Velosa
Labor Lawyer
