Does the period of suspension from work grant the right to annual leave? | LEADELL Academy
In collaboration with the magazine iFinanses, labor law expert Ilze Jankeviča frequently helps to resolve uncertainties that the readers of the magazine encounter. This time, lending a helping hand is needed in a situation where it is necessary to find out how and whether the time when the employee was suspended from work affects the right to annual paid leave.
In accordance with the norms of the regulatory enactments, an employee could perform his work duties in person only with a vaccination or recovery certificate until 28 February 2022 and in some professions even after that period. In addition, if the employee refused to obtain a vaccination certificate without objective justification, he could be suspended from work.
This raises the question: does the period when the employee was suspended from work grant the right to annual paid leave?
The right to leave is governed by the Labor Law (LL). It sets out the requirements that an employee must meet in order to be entitled to annual leave. Therefore, it is essential to look at this situation through the prism of LL.
Section 152 Paragraph 1 of the LL stipulates that the time which gives the right to annual paid leave shall include the time during which an employee was actually employed by the respective employer, and the time during which the employee did not perform work for justifiable reasons, including:
- a period of temporary incapacity;
- a period of pregnancy leave and maternity leave;
- a period of short-term absence;
- a period of forced absence from work if the employee was dismissed illegally and has been reinstated in his or her previous position;
- the period of leave referred to in Section 155 of this Law.
In turn, Section 152 Paragraph 2 of the LL states that the time period referred to in Paragraph one of this Section shall not include the period of parental leave and a period of leave without retention of remuneration which is longer than four weeks within one year.
As can be seen, suspension from work in case of non-vaccination is not explicitly listed as a justifiable reason. Nevertheless, at the time of suspension, the employee is in an employment relationship but is not performing his or her duties. Henceforth, whether, in the particular circumstances, the absence from work could fall within the scope of Section 152 of the LL as regards the time that gives the rights to annual leave should be analyzed.
The answer might lie within the opinion of Advocate General Trstenjak delivered on 8 September 2011 in case C-282/10 concerning the entitlement to annual paid leave – “absences from work for reasons outside the control of the employee concerned, such as sickness, for example, are to be counted as periods of service. This is also stated in the rule in Article 5(4) of Convention No 132 of the International Labour Organisation of 24 June 1970 concerning Annual Holidays with Pay (Revised).”
Accordingly, with regards to the absence from work due to non-vaccination, it can be concluded that the reason for such absence depends on the will of the employee. Namely, the employee himself, expressing his will, decides not to vaccinate, thus, creating grounds for suspending the employee from work. Consequently, there are no grounds to equate the period of absence (suspension) from work with working time, as well as in general cases, the right to annual leave does not arise concerning this period of time.
At the same time, it must be borne in mind that, in practice, there might be exceptional circumstances beyond the employee’s control. In such a case, the conclusion might be the opposite, namely, that the employee is entitled to annual leave for the period of suspension from work. In the event of a dispute, the assessment of such circumstances shall be made by the court.
What to do in case of uncertainties?
LEADELL Vītols team actively provides professional support to clients in labor law matters. Entrust these and other labor law issues to us: firstname.lastname@example.org
Attorney-at-law Ilze Jankeviča shared her knowledge at the LEADELL Academy. Ilze has in-depth expertise in the field of labor law and she would be pleased to help you in finding solutions to issues arising from employment relations.