Increase to annual leave for under 33s
As of 1 January 2020, employees in Slovakia may be incentivised to have children earlier. This stems from the latest amendment of the Labour Code, a cultural shift in Slovakia under which all employees younger than 33 years of age who are continuously taking care of a child shall be entitled to an additional week of paid annual holiday. Until now, it was irrelevant whether or not an employee was continuously taking care of a child – employees younger than 33 years of age were entitled to a minimum of four weeks of annual holiday, while all employees aged 33 years or older were entitled to a minimum of five weeks of annual holiday. The amendment thus breaks down the category of employees younger than 33 years of age into two groups – those taking care of a child with an extra week of annual holiday and others with the statutory minimum of four weeks of annual holiday.
Issues for employers
While employers would often raise objections to similar regulatory initiatives connected with higher costs, this particular measure has attracted criticism from a significantly more diverse group of stakeholders, including even the Ministry of Labour, which was bypassed in the legislative process by two MPs who brought the amendment proposal directly to Parliament. Critics have, for instance, alleged that the amendment does not serve the purpose of employees' rest and recuperation (i.e. the supposed purpose of the holiday) as much as it serves family purposes, or that it inherently discriminates against employees younger than 33 years of age who have no children. It also excludes employees in the public sector as they fall outside the scope of the amendment.
From an employer's point of view, the most problematic aspect of the new regulation lies in the fact that it fails to define what is to be understood as the “continuous care of a child” and who should be considered a child. Employers may, therefore, find themselves in a difficult situation when assessing individual employees' claims to five weeks of holiday. For example, one may conclude that a divorced employee who only has visiting rights to his/her child as custody rights which were granted exclusively to the second parent should not meet the requirement of continuous care of a child, but it cannot be ruled out that a court or a labour inspectorate would have a different opinion on that matter.
The situation might be even more complicated in the case of single parents or divorced parents who share custody rights. In addition, while it seems that an employee who is continuously taking care of an adopted child should be entitled to a minimum of five weeks of paid holiday per calendar year, it is much less clear whether an employee (younger than 33 years of age) who lives in the same household with a child that is neither his/her own in a biological sense nor an adopted one (e.g. it could be his/her sister's child) should have the same entitlement. Since the definition of a child and any age limit in that regard is missing, it is presumed that children up to 18 years of age are to be taken into account when assessing the employee’s claim to an extra week of holiday.
In cases of doubt, employers should ask their employee to present evidence which demonstrates that the employee continuously takes care of a child. Such evidence may include a birth certificate of the child, a divorce judgment of the court, bills related to the care of the child or a sworn declaration of the employee. Taking this approach, employers may somewhat reduce the risk that an employee whose request for an additional week of the holiday is eventually turned down would succeed with a complaint submitted to the labour inspectorate or a lawsuit brought before the court.
Some employers might choose to provide an additional week of holiday also to employees who legally shall not be entitled to it, if they are willing to pay more just to be on the safe side. Until the courts hand down the first judgment on the matter, possible lawsuits and/or higher costs may continue to haunt employers.