Company closes in August. Should you take these days off on my vacation?

“ A answer, although affirmative in its essence, requires some clarifications that need to be well settled.

O right to leave is a fundamental right of the worker, as set out in Article 237 of the Labour Code. It is, moreover, an unrenounceable right. 

The closure for holidays is legally supported by Article 242 of the Labour Code. In accordance with paragraph 1, where this is compatible with the nature of the activity, the employer may terminate the undertaking or establishment, in whole or in part, for workers' holidays, in the following situations: up to 15 consecutive days, from 1 May to 31 October; for a period of more than 15 days, or outside that period, when it is fixed as an instrument of collective regulation or with the assent of the commission of workers; or for a period of more than 15 days between May and October, when the nature of the activity requires it.

Consequently, the estival closure in august is a faculty that the law recognizes to the employer, within the limits described above, which does not, as a rule, require the individual agreement of each worker. 

Strictly speaking, the employer does not “discount” days on the worker’s vacation. What happens is that the closing days are counted against the annual leave of the worker. In other words: during these days the worker is on vacation, enjoying them, being normally paid back. They are effectively marked holidays, with the nuance of being collectively marked for the whole company, rather than individually.

However, a relevant question arises, namely what happens if the worker does not have sufficient days of leave for the company’s closing days. Imagine the worker admitted a few months ago, who has not yet won 22 days of vacation, or the one whose remainder does not cover the entire closure period. In this case, the employer cannot force the worker to stay without retribution for the days in excess, nor to demand that they “compensate” working on other dates, nor even that they “stay in debt” vacations that have not yet won. For the closing days exceeding the available holidays, the worker shall retain the right to pay the compensation and bear that cost to the company.

In short, the company may legally terminate in august and charge those days to the worker's vacation period, provided that it respects the time limits and communication obligations. This does not mean that the worker loses holidays to which he is entitled: it just means that he enjoys them in that period defined by the employer.”

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Dantas Rodrigues has been a lawyer since 1993 and partner of Dantas Rodrigues & Associados. He has also been a professor of Polytechnic Higher Education Law since 1995.