Staying away does not automatically mean losing your right to holiday bonus, but there are nuances that can change the amount to be received. Portuguese legislation protects workers in these situations, although the practical application depends mainly on the duration of the absence, whether the contract has been suspended and whether or not the absence lasts more than one calendar year.
According to , the worker is entitled, in each calendar year, to a period of paid vacation, which expires on January 1st. The law also clarifies that this right is not, as a rule, conditioned on attendance or effectiveness of service. In other words, a sick leave does not, in itself, eliminate the right to vacation.
What changes when the downturn continues
The general rule is clear: even in a situation of illness, the worker retains the right to vacation. However, when the absence is prolonged, the impact can reach the holiday bonus and the Christmas bonus, especially if the absence results in the suspension of the employment contract.
The Labor Code determines that the contract is suspended when there is a temporary impediment due to a fact relating to the worker, which is not attributable to him, and which lasts for more than a month, namely due to illness or accident. Suspension may occur before this period when it is foreseeable that the impediment will last more than one month.
If the downturn begins and ends in the same calendar year, the impact tends to be smaller. In these cases, the employee does not automatically lose the 22 working days of vacation that have already expired, nor the respective allowance, although the vacation may have to be rescheduled if it coincides with the period of incapacity.
The Labor Code provides that the enjoyment of vacations does not begin or is suspended when the worker is temporarily unable to do so due to illness or another fact that is not attributable to him, as long as he communicates this situation to the employer. If it is not possible to take vacation, the employee is entitled to remuneration corresponding to the period not taken or to be taken until April 30 of the following year, maintaining the respective allowance.
When there is prolonged downtime and a change of year
The situation becomes more sensitive when sick leave lasts more than one calendar year. In the year in which a prolonged impediment that began in the previous year ends, the CLT applies a rule similar to that in the year of admission: the worker is now entitled to two working days of vacation for each month of the contract, up to a limit of 20 days.
This is where differences in the amount of holiday bonus may arise. On extended leave, there may be periods when the employer does not pay, in whole or in part, certain allowances because it is not legally obliged to do so. In these cases, the worker may have to resort to Social Security to compensate for part of the loss.
It is also important to distinguish the holiday bonus from the Christmas bonus. The CLT establishes that the Christmas bonus is proportional to the length of service provided in the calendar year in the event of suspension of the employment contract due to a fact concerning the employee.
There is support that can compensate for losses
For situations in which the holiday or Christmas bonus is not paid, in whole or in part, there is a specific mechanism: Social Security compensatory benefits. This support is intended for workers who, due to subsidized illness or parenthood, did not receive part or all of the employer’s benefits. ([Governo de Portugal][2])
According to Social Security, the compensatory benefit can be requested when the worker was prevented from working due to illness or parenthood for 30 or more calendar days and did not receive the subsidies that would have been due, in whole or in part, from the employer.
In the case of illness, Decree-Law No. 28/2004 provides for compensatory cash benefits for holiday, Christmas or similar benefits. The attribution depends, among other requirements, on whether the worker is not entitled to payment of these subsidies by the employer, in whole or in part, as a result of a subsidized illness, and whether the employer has not paid them.
The value does not necessarily correspond to the entire missing amount. In the case of illness, the compensatory benefit corresponds to 60% of the amount that the employee no longer received from the employer.
How to request compensatory benefit
The request can be made through Social Security Direct. According to the gov.pt portal, the application must be submitted within six months, counting from January 1st of the year following the year in which the subsidies were due by the employer or, in the case of termination of the contract, from the date of end of the employment contract.
The same source indicates that the request can be followed online and that, in the case of illness, the benefit corresponds to 60% of the value of holiday and Christmas allowances that the employer did not pay nor had the obligation to pay. In parenting situations, the value can reach 80%.
Parenting follows its own rules
In the case of parental leave, the logic is similar, but there are relevant differences. The CLT establishes that absences due to parental leave, in any form, do not result in the loss of any rights, except in relation to remuneration, and are considered as effective provision of work.
Even so, if the employer does not pay, in whole or in part, holiday or Christmas bonuses because it is not legally obliged to do so, compensatory payment may be due from Social Security. In these cases, the value indicated by Social Security is 80% of the value of the subsidies that remained unpaid.
This framework seeks to prevent workers from being completely financially harmed during periods of absence for health or family reasons. Even so, the final value may not correspond to that of a full year of work, especially when the contract is suspended or when the absence spans several calendar years.
What if it is a work accident or occupational illness?
When absence results from a work accident or occupational illness, specific compensation rules apply. Law No. 98/2009 provides, for example, that compensation for temporary incapacity for more than 30 days includes the proportional part corresponding to holiday and Christmas allowances, determined according to the benefit due.
Therefore, it is important not to mix all regimens. A leave of absence due to a common illness, an incapacity due to an accident at work and an occupational illness may have different consequences for the payment of benefits, even if they all involve absence from work.
Rule of thumb
The practical rule is simple: sick leave does not automatically eliminate the right to vacation or vacation pay. The problem may arise when the leave is extended, the contract is suspended or it lasts for more than one calendar year.
In these situations, the worker must confirm whether the employer paid what was due and, if there are missing amounts, check with Social Security whether they can request compensatory benefits.
As the effects vary according to the duration of the leave, the year in question, the type of impediment and the applicable regime, each case must be analyzed carefully. Rights do not disappear automatically, but they may undergo adjustments that are not always evident at first glance.
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