Important and/or distinctive aspects of holiday/annual leave legislation in Brazil
Vesting period: the first 12 months of employment is known as the “vesting period”. Once completed, the employee is normally entitled to take 30 calendar days of annual leave. This is also known as the "reference period" or the "acquiring period".
Granting period: the granting period of annual leave is the 12 month period following the end of the vesting period. The annual leave must be taken during the granting period. If the employee is not permitted to take the annual leave, the employer must pay the employee in lieu of any untaken annual leave at double their usual rate of pay.
Split of Annual Leave: the statutory position is that annual leave must be taken in a single period, and it is at the employer's discretion to allow the employee to divide the annual leave entitlement into separate periods. None of the annual leave periods may be shorter than 10 days. This, however, does not apply to employees over 50 or less than 18 years of age, who must take the annual leave in one single period.
Payment in Lieu of Annual Leave: an employee may also have the option to sell up to a third of their annual leave entitlement.
Accrual of Annual Leave: for the purposes of annual leave, the following are not deemed to be unjustified absences:
- days when employees are entitled not to work under Article 473 of the CLT (the Brazilian labour code) such as, for example, licence days for marriage, blood donation, to enrol for compulsory military service and to enrol to vote in elections;
- maternity leave (in the case of birth, stillbirth or abortion);
- during sick leave paid by the INSS (Brazilian social security), either by virtue of illness or work-related accident (save when the employee is on sick leave for more than 6 months);
- leave which is authorised or permitted by the employer;
- when there is no work and the employee continues to receive salary (save if this lasts for 30 days or longer); or
- during the suspension of the employment agreement for the employee to respond to disciplinary proceedings or if the employee has been remanded in custody and has not been charged or is acquitted.
Loss of Annual Leave: the employee will lose the right to annual leave if, during the vesting period, any of the following occurs:
- the employee leaves the job and is not re-admitted within the 60 days following departure;
- the employee goes on paid leave for more than 30 days;
- the employee does not work due to a partial or complete shutdown of the services, but continues to be paid, for more than 30 days; or
- the employee is in receipt of a sick leave benefit paid by the INSS (Brazilian social security) for more than 6 months.
In such cases, a new vesting period will start when the employee returns to work.