Who Decides Vacation Days: The Employer or the Employee?

Who Decides Vacation Days: Employer or Employee?

Every year, as the holidays approach, the question arises as to who should decide on vacation days, whether it’s the employer or the employee.
It’s not uncommon for a worker to have their vacation request denied, which, although it may seem like a violation of their rights, is actually a legitimate behavior.
Despite the fact that this right is protected by the Constitution, the employer has the authority to make decisions regarding holidays in order to protect the company’s needs or services.
This means that they can refuse a request from the employee, as well as set periods for collective vacations, obliging all workers to take a vacation at the same time.

It is mandatory for the worker to be able to take the accrued vacation days within the legal limits.
Therefore, when the employer decides on vacations, they must find a solution so that at least 2 consecutive weeks of vacation can be taken within the year of accrual, in order to avoid penalties.

In summary, while there are ways to increase the chances of having a vacation request approved by the employer, such as requesting in advance or organizing with colleagues, there is no absolute rule that protects the worker, who may have to comply with the company’s decision every year.

It doesn’t matter if vacations are scheduled in high season (a nightmare for vacationers looking to save money) or in shoulder seasons (spring and autumn).
There is also no rule that protects married workers regarding the possibility of having to take vacations at the same time as their spouse.
Let’s now see what rules regulate the decision regarding company holidays, focusing on the rights and duties of the employer.

Who Chooses Vacation Time: Employer or Employee?

As mentioned earlier, despite vacations being an essential right for every employee, established by the Constitution and numerous legislative interventions, this does not mean that subordinate workers are free to take vacations whenever they please.
National legislation (law no.
66/2003) sets “boundaries” to the possibility of taking vacations, which both the employer and the employee must adhere to.
Firstly, it is established that the employee accrues at least 4 weeks of vacation per year, two of which must be taken by December 31st, while the remaining days can be used within the following 18 months.

Further clarifications were provided by the Ministry of Labor with circular no.
8 of 2005, which established how vacations can be taken: the 2 weeks to be taken within the accrual year can also be taken continuously if the employee’s request is made with sufficient notice, allowing the company to assess both the business and personal needs of the employee; the second period can be taken in a fragmented manner within the 18 months following the accrual year; if the National Collective Bargaining Agreement recognizes additional vacation days, these can be taken in a fragmented manner without any deadline (unless otherwise specified in the contract).

Therefore, those who work in a company, especially small ones, must plan their vacations well in advance to allow the employer to organize production during periods of absence.
There are two principles to balance: the employee’s right to physical and mental recovery and productivity.

For this reason, the employer can deny vacations and postpone them, justifying the refusal based on concrete business needs.
In this case, vacations are not lost but can be taken at a later time.

If the company closes, is the employee forced to take vacations?
The Supreme Court has confirmed multiple times that the employee’s vacations coincide with the company’s closure, if scheduled.
This means that, for example, if the employer decides to interrupt activities during August, all employees will be required to take their holidays during that period.

In this case, we are talking about “collective and mandatory vacations,” as they are enjoyed simultaneously by all employees without the possibility of choice.

Can the Employer Recall an Employee from Vacation?

Confirming that the employer prevails over the employee, the law states that the company has the right to recall its employees from vacation and have them return to work if necessary.
Rules, reasons, and constraints for the recall from vacation are established by the individual Collective Bargaining Agreements (with significant differences).

If there’s no obligation for the employee to be reachable during vacations according to the collective/individual contract, the employer cannot exercise the power of recall; on the other hand, in other contracts, the obligation to be reachable may be established.
In any case, if the employee is forced to interrupt their vacation and return to work, they must be financially compensated in their paycheck and, in some cases, have their vacation expenses reimbursed.

When can the recall happen? These are exceptional cases that must respond to specific production needs.
In other words, the recall from vacation can only happen if the employee’s presence is crucial for business continuity.