PUBLISHED BY Arlati Ghislandi
Leave according to Law 104 and extraordinary leave: special cases
29
Aug
2018

With message no. 3114 of 7 August 2018, INPS provided some clarifications on the use of leave provided for in the event of persons with a serious disability (pursuant to art. 33, paragraphs 3 and 6 of law no. 104/92) and of extraordinary leave (pursuant to art. 42, paragraph 5 of Leg. Decree no. 151/2001), relating to cases of particular organisational methods of working time, such as:

-     work shifts that take place between two calendar days and/or during public holidays;

-     part-time workers;

-     cumulation with extraordinary leave referred to in article 42, paragraph 5 of Leg. Decree no. 151/2001.

It should be noted that art. 33 of law no. 104/92 establishes that employees who need to care for a person with serious disabilities are entitled to three paid days off work per month, while art. 42, para. 5 of Leg. Decree no. 151/2001 establishes a leave of absence of no more than two years for the spouse of a person with serious disabilities.

“Work shift” means any form of organisation of the working hours different from the normal “daily working hours”, where the company’s working hours may cover the entire 24 hour period and all days of the week.

This organisational method, therefore, may also include night work and work performed during public holidays (including Sundays).

Article 33, paragraph 3, of Law no. 104/1992 provides for the use of monthly leave paid “by day”, irrespective of the breakdown of the work performed over a 24-hour period or week and of the number of hours that the employee would have had to actually perform on the day in question.

It follows that the leave can also be used in relation to a work shift to be performed:

-     on Sundays;

-     at night; in fact, although the night work takes place between two calendar days, the performance still refers to a single work shift in which the organisation is structured.

Time off work taken during the entire work shift should be considered equal to one day off work even if it falls between two calendar days.

The possible hourly reproportioning of leave days in accordance with article 33, paragraph 3, of Law no. 104/92 can only be applied if the benefit in question is taken in hours. In this case, the following formula is applied to determine the monthly hours that can be used:

“average weekly working hours/average number of weekly working days (or shifts) x 3 = monthly hours that can be taken”.

  • 2. Daily reproportioning of leave days in the      case of a part-time employment relationship

The calculation formula to be applied for the re-proportioning of 2 monthly days off work in the case of vertical and mixed part-time work with work activities limited to some days of the month is as follows:

average weekly hours that can theoretically be performed

by the part-time worker

--------------------------------------------------- x 3 (days of theoretical leave)

average weekly hours that can theoretically be performed

by full-time workers

 

The resulting number should then be rounded up or down depending on whether the fraction is 0.50 or higher.

The days off work are not reproportioned in the case of horizontal part-time work. In fact, in these cases the proportion of leave days at the reduced duration of the work activity is inherent in the dynamics of the relationship itself.

3. Divisibility in hours of the days off work in the event of a part-time employment relationship

The hourly reproportioning of days off work referred to in article 33, paragraph 3, of Law no. 104/92 can only be carried out if the benefit is used, even partially, in hours.

Below is the calculation formula to be used in the case of part-time work (horizontal, vertical or mixed) for the purpose of quantifying the maximum hours of leave per month:

 

average weekly time that can theoretically be performed

by the part-time worker

-------------------------------------------------------- x 3 (theoretical leave days or shifts)

weekly full-time working hours

 

It is possible to accumulate in the same month, provided that it is on different days, the periods of extraordinary leave pursuant to article 42, paragraph 5, of Leg. Decree no. 151/2001 with the days off work pursuant to article 33 of law no. 104/92 and article 33, paragraph 1, of Leg. Decree no. 151/2001 (3 days of monthly leave, extension of parental leave and rest hours alternative to the extension of parental leave).

It should be noted that the periods of extraordinary leave can be combined with the days off work provided for in article 33 of Law no. 104/92 without the need to resume work between the taking of the different types of benefits.

The above can also occur at the capacity of whole months and regardless of the duration of the extraordinary leave.

The use of the benefit of three days of monthly leave, of the extension of parental leave and the hours of rest alternative to the extension of parental leave itself, however, is understood to be alternative and not cumulative over the month.