Today's article begins a new series. Every other Friday, we'll discuss a topic related to labor law. The Labor Code isn't a very comprehensive code, but that doesn't mean everything is clear in this area. It's safe to say that every working person is different. However, our law firm isn't afraid of any work, so we're happy to analyze each one, providing a personalized approach and a comprehensive look. We hope that our series will dispel many of your doubts. For any remaining questions, please contact us directly.

With the upcoming holiday season upon us, let's explore the issue of vacation entitlement. Is it a right or an obligation?

Vacation – a right or an obligation?

According to the Labor Code, an employee employed under an employment contract is entitled to annual, uninterrupted, paid vacation leave. The employee cannot waive this right, and the employer is obligated to grant the employee leave in the calendar year in which the employee acquired the right. Does this mean that, even if they don't want to, the employee is absolutely obligated to take leave? Why is the right to decide how to use their time off denied? The answer is simple. If the Labor Code weren't strictly regulated, stating that an employee cannot waive their right to leave and that the employer must grant it, this could open the door to abuse. For example, an employer could make employment contingent on waiving the right to leave. And the importance of time off from work is probably self-evident. Furthermore, the legislature has gone a step further in this regard, specifying that leave can be split, but one of the parts should last no less than 14 consecutive calendar days.

When do I become entitled to 26 days of leave?

The question posed above seems trivial, as everything is clearly spelled out in the Labor Code. And indeed, it is, but it must be read carefully.

The length of leave is 20 days for employees employed for less than 10 years; after this period, the length of leave increases to 26 days. However, the number of years of school completion is included in the length of employment on which the length of leave depends. For example, an employee who has completed secondary school will have 4 years of employment included in their length of employment, while an employee who has completed higher education will have 8 years of employment included in their length of employment.

Therefore, an employee who returns to work after completing his/her studies may acquire the right to a higher amount of leave after just two years.

But are you sure it's two full years?

Consider this scenario: A graduate employee begins work on September 1, 2023. According to the regulations, they accrue the right to vacation leave proportionally to the months worked (in advance or in arrears, depending on whether the job was started for the first time in the employee's life) until the end of the year. For each month, they earn 1/12 of vacation leave. Therefore, in 2023, from September to the end of December, they can take 6.66 days of vacation. However, a partial day is rounded up to a full day, so the employee is entitled to 7 days of vacation. The following year, the situation is simple – a full year, meaning 20 days of vacation. The employee will have worked for two full years until September 1, 2025. Does this mean that the employee also receives 20 days of vacation in 2025? Yes and no. Employees are entitled to 20 days of vacation until September 1, 2025, but from that date on, they are entitled to 26 days of vacation. In this case, the calculation is no longer pro rata; instead, the additional six days of leave are granted until the end of the year. The employee can only use them after September 1, 2025. As a result, the employee can use 26 days of leave in 2025, less than two years later.

How to plan a vacation?

In many workplaces, a vacation plan is established at the beginning of the year. The employer establishes this plan, taking into account employee requests and the need to ensure normal operations. However, the employer may choose not to establish a vacation plan if the company trade union has given its consent, or if it does not. In such cases, the employer determines the vacation date in consultation with the employee. As a result, vacation days are often granted upon individual employee request. Postponing vacation days is permissible due to the employer's specific needs if the employee's absence would cause significant disruptions to work. The employer also has the option of recalling an employee from vacation, but only if unforeseen circumstances at the time the vacation begins require the employee's presence at work. In this case, the employer is obligated to cover the employee's costs incurred directly as a result of the vacation cancellation. Likewise, if the employer cancels a planned trip, for example, to the Maldives, the employer is obligated to cover the costs of flights and reservations that could not be canceled.

What about unused leave?

Sometimes, a situation (completely incomprehensible to the author) arises where an employee does not use all of their leave entitlement for a given calendar year. Does this leave expire? Generally, no. An employer is obligated to grant unused leave to an employee no later than September 30 of the following calendar year. If the employee does not express a desire to use their accrued leave by that date, the employer may provide it without the employee's consent. An employee can use accrued leave until the statute of limitations expires, which is three years from the end of September. After this date, claims for accrued leave become time-barred, as do claims for cash compensation (more on this in the next alert). However, such cases are unlikely to occur, as an employer may receive a fine from the National Labor Inspectorate if an employee fails to use accrued leave by September 30 of the following year. The fine can range from PLN 1,000 to PLN 30,000. Therefore, employers encourage employees to use their annual leave on an ongoing basis or during the period in which unused days off constitute overdue leave.

Do I earn money during my vacation?

Of course! For the duration of vacation leave, an employee is entitled to the remuneration they would have received had they been working during that time.

The above discussion on leave is based on the provisions of the Labor Code and is addressed to employees employed under an employment contract. Other forms of employment require direct agreements between the employee and the employer.

Of course, that's not all we have to say on this topic! In future alerts, we'll cover other types of leave, including maternity and parental leave, how they're compensated, and when you can apply for them.

If you have any questions, concerns, or need legal advice, please contact us!

This article is for informational purposes only and does not constitute legal advice.

Legal status as of June 22, 2023

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