Under article 244, paragraph 1 of the Portuguese Labour Code that “The right to holidays does not start or is suspended when the worker is temporarily prevented by illness or other fact that should not be attributed, provided that communication even to the employer. ”
Paragraph 2 states that “In the case referred to in the preceding paragraph, the enjoyment of the holiday takes place shortly after the end of the impediment as the remainder of the period marked, with the period corresponding to the days not taken to be scheduled by mutual agreement, or failing that, by the employer, without being subject to Article 241.º. ”
This means that you must be granted the right to leave to the employee as soon as cease the disease situation, the situation of disease ceased in the calendar year in which it started, having this right to enjoy the remaining not taken, if still vacation, or to schedule new dates for this purpose if the forecast period has been exceeded.
For this purpose it is necessary that the employer is informed of the circumstances and that provides evidence of the disease situation (v. G. Medical certificate, health center statement, hospital).
However, we must take into account that under paragraph 3 of Article 244 of the same Labour Code “in case of total or partial impossibility of holiday enjoyment for worker’s cause for disqualification, is entitled to remuneration corresponding to the vacation not taken or to enjoy the same by 30 April of the following year, and in any case, to their benefit. ”
So, for the holiday due in previous years and not taken (see for example in 2015), due to sick leave, the employee could enjoy them until April 30, 2016, or if not the would enjoy, for having kept the impediment, would be entitled to receive the remuneration corresponding to the period not taken, if they so wished.
However, article 295 of the Labour Code that “for the reduction or suspension, remain the rights, duties and guarantees of the parties that do not imply the actual performance of work.” However, Article 237, paragraph 2 states that the holidays relate to working days provided in the previous year, so if the employee to no activity for more than a year, is prevented due to sick leave, the leave entitlement can not win automatically, as this is a right that requires the actual performance of work.
Take, for example, the case of a worker who start sick leave on September 1, 2015. On January 1, 2016, remains low, so it does not win new entitlement, given the suspension of employment contract for prolonged impairment of the worker. In March 2016, the employee had high medical and should soon start the holiday joy with regard to the months worked 2015 (until September). If you not given the right to enjoy the holidays, should the worker receives the corresponding fee.
About this subject: A doença e a parentalidade no Direito a Férias, Master dissertation by Mafalda Nascimento Guimarães in Universidade Católica Portuguesa.
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