The school closes due to strike, the children stay at home and many parents no longer have an alternative to reporting to work. The question arises almost immediately: is the absence justified or can the employer deduct the day?
According to , the answer depends on the specific circumstances, but there is a legal basis to argue that absence can be justified when the worker has to provide assistance to a minor child and has no other support solution.
What the CLT says
The starting point is in article 249 of the CLT. The standard considers absences motivated by the impossibility of performing work due to a fact not attributable to the employee to be justified, including situations related to compliance with a legal obligation.
It is within this framework that school closures due to strike may come into play. If the strike prevents the child from staying at the educational establishment, if the child needs monitoring and if the worker has no other alternative, the absence may be classified as a justified absence.
According to DECO Proteste, cited by Ekonomista, parents have a legal duty to provide assistance to minor children. Therefore, when the school closes due to strike, absence from work can be justified, as long as it is demonstrated that the assistance was actually necessary.
Excused absence means protected salary?
The most delicate issue is remuneration. In Portugal, justified absence and paid absence are not always the same thing. Article 255 of the Labor Code provides for cases in which a justified absence implies loss of salary. The most favorable interpretation for parents maintains that absence due to school closure, when framed as compliance with a legal obligation to care for the child, does not appear in this list of absences justified by loss of salary.
Therefore, when the requirements are met, there is a basis for arguing that absence must be justified and remunerated. Even so, Ekonomista emphasizes that the situation of strikes in schools is not expressly and autonomously regulated. Therefore, the management of these cases may depend on the evidence presented by the worker and the employer’s understanding.
The right is not automatic for both parents
Absence should not be seen as an automatic right for both parents at the same time. The essential point is to understand who was effectively prevented from working to ensure the child’s care.
The worker must be able to demonstrate that they had no reasonable alternative. This may be particularly relevant in single-parent families, in cases where the other parent is unable to provide assistance or where both parents work personally. If one of the parents can telework and the other does not have this possibility, the situation can be analyzed differently. The employer may request evidence that proves that the assistance was necessary.
The child’s age also matters
The situation is more evident when young children are involved, especially those of pre-school or primary school age, who cannot be left at home alone. According to a reading defended by DECO Proteste, the justification gains strength when the worker has to ensure the support of a child under 12 years of age and there is no alternative.
The more dependent the child, the stronger the argument that the absence from work resulted from a legal obligation to provide family care.
What documents should you ask the school for?
Documentation can make the difference between an absence accepted without conflict and an argument with the employer. The first step should be to ask the school for a written statement or communication confirming that the establishment was closed due to a strike, or that it was unable to receive the child that day.
This statement must identify the school, the date and, whenever possible, the reason why it was not possible to guarantee teaching activities or monitoring. Emails from management, messages on the school platform, official notices or other documents sent to guardians can also serve as evidence.
How to notify the employer
Communication to the employer must be made in writing, preferably by email, so that it is recorded. The worker must explain that the absence resulted from the closure of the school due to strike and the need to provide assistance to a minor child, due to the lack of alternative support.
You can also make reference to article 249, ยง 2, paragraph d), of the Labor Code, invoking the impossibility of providing work due to a fact not attributable to the employee and related to the fulfillment of a legal obligation. The school’s statement must be attached or delivered as soon as possible.
What if the employer discounts the day?
If the employer considers the absence unjustified or deducts the salary, the worker must ask for clarification in writing. It is advisable to request an indication of the legal basis used to justify the discount or denial of the absence. This response may be useful if you need to move forward with a complaint.
When the conflict persists, the worker can contact the Working Conditions Authority. ACT can provide information, analyze the situation and intervene if non-compliance with labor rules is involved.
Strikes raised doubts again
The topic gained greater relevance due to the succession of strikes in the educational sector, with an impact on teachers, non-teaching workers, pre-school and primary education. It is precisely these levels of education that most depend on the presence of adults to ensure the safety of children. When schools close, many families are left with no immediate response.
The problem is that the law does not contain a simple and specific rule for all cases of school strikes. Therefore, the legal interpretation, the documentation presented and the communication with the employer become decisive.
The answer for parents
If the school closed due to strike and the worker had no alternative to guarantee the care of the minor child, there is a basis for considering the absence justified. The most favorable interpretation also maintains that the salary should not be deducted, as long as the absence is part of the fulfillment of a legal obligation and is not included in the situations that determine loss of remuneration.
But protection does not require proof. Declaration from the school, written communication to the employer and registration of all documents are essential. In essence, the law may be on the parents’ side, but it’s how absence is reported and documented that can prevent problems at work and protect wages.
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