Licenses under Article 54 of the Labor Code
The issue of leave entitlements for employees tends to cause some confusion between workers and employers. In this brief article, we will examine what our Labor Code establishes regarding paid leave.,
In accordance with the provisions of Article 54 of the Labor Code of the Dominican Republic, employers are obligated to grant their workers paid leave in the following cases:
- Five (5) days of paid leave, on the occasion of his marriage;
- Three (3) days, in the cases of death of any of his grandparents, parents and children, of his spouse or of his partner, and
- Two (2) days in the case of childbirth of the wife or partner duly registered in the company.
It is worth noting that, in drafting Article 54, the three-day leave in the event of the death of the worker's siblings was omitted. Sometimes I wonder if the person who drafted Article 54 of the Labor Code was an only child.
For many years there has been a debate about the nature of the days that should be granted to the worker. Many understand it to mean calendar days, while others of us understand it to mean working days.
To defend the second position, it is pertinent to highlight that, on the worker's days off and legally declared holidays, the worker is not obliged to "ask for permission" to be absent from work.
In addition, holidays are paid days off for the worker, unless they coincide with the weekly rest day as established in article 165 of the Labor Code.
Faced with this doubt, Dr. Rafael Alburquerque offers an excellent interpretation when he says that:
«"It would not make sense to talk about leave on a day off or holiday; therefore, only working days should be counted in the duration of the leave, excluding weekly rest days or holidays that fall within the period."»
(Rafael Alburquerque, Labor Law, Volume II, Pages 421-422. Trajano Potentini Editions. Santo Domingo, 2006).
In that same vein, Article 54 clearly establishes that the days of this leave are with full pay. Furthermore, it is important to note that this provision is found in Title V of Book One of the Labor Code, which deals with the suspension of the effects of the employment contract.
If an employer dares to deduct at least one day's salary in the cases indicated by article 54, he runs the risk that the worker will present a justified resignation in the ordinals 2nd and 7th of article 97 of the Labor Code, for not paying him the full salary and for illegally reducing the worker's salary.
License for two half-days per week during the advance notice.
Likewise, during the notice period, the employee will be entitled, without reduction of salary, to two half-days of leave per week. What the legislator has established in Article 78 of the Labor Code is the possibility for an employee in the notice period to have at least one day per week to look for a new job.
Therefore, it establishes the right to take two half-days off per week. A standard workday is 8 hours. Thus, if the employee is entitled to two half-days off per week, this means that employees with 7 days' notice are entitled to two half-days off, those with 14 days' notice are entitled to four half-days off, and those complying with the 28-day notice period are entitled to eight half-days off with full pay, without affecting their weekly rest days or any public holidays that may fall within that period.
You can learn more about advance notice in this article: LABOR EVICTION IN THE DOMINICAN REPUBLIC
Paid leave for breastfeeding
In accordance with Article 240 of the Labor Code, "During the breastfeeding period, the worker is entitled, at the workplace, to three paid breaks during her workday, of at least twenty minutes each, for the purpose of breastfeeding the child.".
However, many companies do not have a daycare or a designated area for breastfeeding mothers. In practice, these three 20-minute breaks are often combined into a single hour so the employee can exercise this right. This is usually done by mutual agreement between the employee and the employer or their representative.
Finally, it is important to highlight that the employer must grant the employee leave under Article 243, which states that: "During the first year after the birth of the child, the employee may take half a day each month, as convenient, to take the child to pediatric care.", It is a paid leave. This is by application of Principle VIII (Principle in dubio pro-operario and most favorable standard).
This principle establishes the following: "In the event of conflicting legal or collective bargaining agreements, the one most favorable to the worker shall prevail. If there is doubt regarding the interpretation or scope of the law, the decision shall be made in the manner most favorable to the worker."»
As can be observed, the constitutional norm of article 40, ordinal 15 of the Constitution of the Dominican Republic, should not be invoked in that case, since, although it is true that the legislator omitted to make express mention that this leave was paid, it is no less true that he did not provide the contrary and, in case of doubt, the Labor Code establishes that the worker is favored.
- If you want to know more about this topic, you should read this post: Maternity Protection in the Dominican Republic: Rights and Benefits according to the Labor Code and Law 87-01
Leaves of absence and permits due to common illness or work-related accidents are considered subsidies and are not included in this category. Furthermore, maternity and breastfeeding leave It has a more complex treatment. For this reason, it will be discussed in more detail in a future article.
