Can I miss taking my son to an appointment? How do I justify it?

Can I skip work to accompany my son to a doctor's appointment? How does the justification of faults work?

“ It is one of the most frequent doubts in consultations on Labor Law: the child has a mid-morning appointment, and the worker asks if he can miss, if the employer can refuse and if he loses part of the salary. The answer, as usual in law, is: it depends. It depends mainly on the reason for the consultation, how the absence is communicated and the evidence presented.

The Labour Code defines lack as the absence of the worker from the place where he should work during the normal period of daily work. Shorter absences than one day add up to this effect.

Article 249 sets out the justified deficiencies. Among them are the absences motivated by the need to provide unreserved and indispensable assistance to the child, grandson or family member. 

Article 49 of the Labour Code is the standard governing this matter. The law guarantees up to 30 days a year to provide permanent and indispensable assistance to children under 12 years of age and up to 15 days a year to children aged 12 years or older. The law requires, however, that the assistance be due to the illness or accident of the child. This is where the main issue arises.

If the consultation originates in a disease or accident (e.g. a persistent fever, a paediatric emergency or the follow-up of a disease already diagnosed), the absence is, in principle, in Article 49 and is justified.

The case is more doubtful when it comes to routine consultation, or child health surveillance, vaccination or a check-up. Part of the doctrine and practice understands that, without sickness or accident, the assumptions of Article 49 are not fulfilled. Others advocate a broader interpretation, taking into account the purpose of protecting parenting. For prudence, in such situations it is recommended that the worker obtain a medical statement justifying the need for consultation and the presence of the parent; or ask the employer for a prior authorisation (Article 249(2)(k), knowing that it may entail loss of retribution.

There is still a time limit to consider. The absence is justified by the strictly necessary time: consultation, travel and follow-up time which are indispensable. It doesn't automatically cover all day. 

It should also be clarified that the fact that the absence is justified does not imply that it is remunerated. 

Absences for child care do not imply loss of any rights and count as effective provision of work, except for retribution. In other words, the employer does not have to pay the hours or days in which the worker is absent from his duties. The worker may, however, apply to Social Security for child care by medical certification issued by health services.

These absences do not affect holidays, seniority or worker performance assessment. 

In conclusion, you may be absent from work to accompany your child to a medical consultation motivated by illness or accident. The absence is justified, but is not paid by the employer. In routine consultations, the solution is less secure and the employer’s authorization or approval should be collected in advance.”

_____________________________________________________________________________________________

Publication of the heading ‘Work and complicated taxes‘ it’s fortnightly. Be a part of it, too. Send your questions, questions or suggestions to the email address.  

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.