The year is coming to an end and one of your employees has not yet used up all his vacation days. Will he be entitled to take his vacation in 2023?
Employees are entitled to 30 calendar days of vacation for each year worked (or the number of vacation days established by their collective bargaining agreement). If on December 31 any employee has not “spent” the vacation days corresponding to the current year, the enjoyment of those vacation days expires, since:
- They must be enjoyed in the calendar year to which they correspond. The right expires at the end of the year and, in general, the accumulation of vacation days in successive years is prohibited.
- The affected party may not demand monetary compensation for those days not taken. The only case in which these days can be replaced by money is when the contract is terminated before they have been taken (they are settled in the severance payment).
Notwithstanding the foregoing, it is valid for the employer to voluntarily allow its employees to accumulate vacation days from one year to the next. In such a case, this must be agreed in writing and, if it is exceptional, it must expressly state that it will not be repeated in the future so that this voluntary concession is not consolidated as a more beneficial condition.
Employees will also be able to enjoy in 2023 the vacation not spent in 2022 if a TI situation totally or partially coincided with their vacation days (which prevented their enjoyment). Specifically:
- The worker affected by the TI must enjoy the pending vacation within 18 months following the end of the year in which they were accrued.
- If the TI is related to pregnancy or is maternity or paternity leave, there is no time limit for the enjoyment of the pending vacation.
In any case, it is not valid for the affected person to renounce his/her vacation. The enjoyment of these is an inalienable right established by law. Therefore, it is advisable to expressly indicate that, in case of not enjoying them on December 31, the right expires and, if on the day of enjoyment any employee does not “take” the vacation days, remind him/her in writing of the effects of the expiration or agree on the enjoyment at the beginning of the following year to demonstrate the good faith of the company.
Our professionals will advise you on any question regarding vacations.