Do workers on ERTE have the right to holidays?
There are many companies that have questions about holidays and ERTE. Does being included in an ERTE affect holidays? What if the ERTE is partial?
The holiday period is approaching for many employees, and as a result, our labour advisors are receiving a multitude of questions about whether or not workers affected by an ERTE can enjoy their holidays and under what conditions.
We explain how holidays are calculated for each type of employee and from what moment they have the right to enjoy them depending on the type of ERTE applied and the conditions agreed between the company and the workers.
Are they entitled to holidays if they are in an ERTE of contract suspension?
During the time that the ERTE of contract suspension lasts, the worker does not generate the right to holidays. Annual holidays will be reduced depending on the days of suspension. In the case of ERTE, holidays are cancelled. Once the situation returns to normal, the worker will be able to enjoy the holidays that correspond to him without counting those accrued during the duration of the ERTE.
Are they entitled to holidays if they are on a partial ERTE, with reduced working hours?
In this case, the accrual of vacation days is not altered. The worker is entitled to the same number of days off as if they had not been covered by the ERTE.
If the holidays were not set at the time of the start of the ERTE with reduced working hours, they may be agreed on a general basis with the workers’ representatives or, if there are none, by mutual agreement between the company and the worker.
However, their salary during the holiday period will be affected, since it will be lower than what they would receive in a full-time situation since their gross annual salary has decreased during the period of reduced working hours (we must not forget that when the working hours are reduced, the salary has also been reduced).
What happens if workers are still on ERTE and cannot take their holidays within the calendar year?
Holidays must be taken within the calendar year. If workers are still on ERTE and have vacation days left to take, the company should stop applying the ERTE to them during that vacation period so that they can take them. In this case, they must receive their salary and the company must pay contributions for it.
Can the company force the worker to take vacations if they are on ERTE?
The company can propose to the worker to take their vacations but cannot impose them unilaterally. Vacations must be agreed by mutual agreement, in accordance with the provisions of the applicable collective agreement on the annual planning of vacations.
The right to enjoy the vacation period is regulated in art. 38 of the Workers’ Statute: they may not be less than 30 calendar days and must be communicated to the worker at least two months in advance before their enjoyment.
In the absence of an agreement, the competent Social Jurisdiction, through a summary and preferential procedure, will set the corresponding date for the enjoyment of the vacation period.
In the case of ERTE, if the worker has confirmed the vacation, can he/she postpone it?
It is necessary to differentiate between the ERTE of temporary contract suspension and of reduction of working hours. If it is a suspension ERTE, the vacations are cancelled for the duration of the ERTE. In the case of the ERTE of reduction of working hours, if the worker wishes to postpone them, he/she must agree with the company.
What happens if the worker is on vacation and the company approves an ERTE?
In the event that the company approves the suspension ERTE while the worker is enjoying vacation days, these will be interrupted and, therefore, only the vacation days enjoyed before the ERTE will be exhausted. The worker will be able to enjoy the pending vacation days when the ERTE ends and the company returns to its activity.
