Rights and duties of workers in case of absence from work

It can happen to anyone that they miss work, whether for an absolutely understandable reason or for a less «orthodox» reason. According to Eurostat, in the first quarter of 2020, 22.9 million people were absent from work. In Portugal, this absenteeism corresponded to 11.8% of the employed population.

Many variables coexist in our lives and, sometimes, it may happen that one – or more – prevails over the obligation of presence and punctuality to which the worker is subject. So much so that the right to be absent from work is regulated in the Labor Code. However, absences exceeding this regulation are considered unexcused and may have unintended consequences.

In this article we explain the main rights and duties of workers in the event of absence from work, answering six questions.

What are excused absences?

When a person gets married and goes on honeymoon, he loses his job. The same happens to those who have the misfortune of experiencing the pain of a close family member. Under certain conditions, these absences will not have consequences on your usual salary or employment rights. And why? Because they are considered justified, or legitimized, by the Law.

Excused absences are those granted for the following reasons:

• Marriage
• Death of a close family member
• Assistance to a child or family member
• Illness
• Take tests in an educational institution
• Go to an educational institution if you are responsible for the education of a minor
• By integrating a collective worker representation structure
• Consultations and medical visits

The number of days justified depends on each circumstance. In the case of a wedding, for example, absences of up to 15 consecutive days are justified. In the event of the death of a child, the law determines justification for up to 20 consecutive days. If the death is of a parent, father-in-law or spouse, this number is reduced to 5. In article 249 of the Labor Code, for each type of justified absence, the article that regulates it is indicated.

What are unjustified absences?

When the worker is absent during normal working hours without justification, such absence is considered a unjustified absence. But be careful: the Law establishes assiduity and punctuality as the worker’s duties. Therefore, if the employee is late for more than an hour, the employer may consider that he will no longer be able to carry out his duties on that day and, therefore, assign him a day of absence.

Following the same logic, if the delay is more than half an hour, the employer can schedule half a day of absence. Furthermore, when the worker is absent for periods shorter than the daily working hours, the respective hours are added. Meaning what, every minute counts and are accounted for.

What are the consequences of being absent from work without justification?

Unjustified absences, in addition to constituting a less prestigious qualification, can have negative effects on performance evaluations and harm the development of one’s professional career.

Furthermore, the most immediate consequence of unjustified absence is a salary reduction proportional to the period of absence. Now imagine that coworker who tends to feel sick on Fridays or Mondays. Since these are days immediately before or after the weekend, the salary reduction is aggravated. Absence in these circumstances results in the loss of 2 days’ pay.

However, there are two possibilities to mitigate the effect of the salary reduction:

• Give up vacation days. Part of the unjustified absences can be «compensated» with the loss of a number of days of vacation, but only to an extent that allows the worker to enjoy 20 days of vacation. If you have missed 4 days, you can only make up 2 of them, which means the remaining two days will be deducted from your salary.
• Work overtime. Always within the limits established by the Law and when possible by the collective labor regulation instrument.

But the most serious consequence is, without a doubt, the dismissal.

Can you be fired for lack of work? Can. If, in each calendar year, the number of unjustified absences exceeds 5 consecutive days or 10 interpolated days and/or if such absences entail serious losses or risks for the employer.

And, in these cases, dismissal is due just causewhich means there are no benefits or unemployment benefits.

What should I do before and after missing work?

Of course, in situations where you know you will be absent – ​​such as a wedding or paternity leave – the employer should be informed in advance. The Law provides for notice of absence at least 5 days in advance (48 hours for candidates for public office during the electoral campaign). Logically, the sooner the better, to give the employer time to find the right person or even prepare them for the tasks they will have to carry out during the worker’s absence.

In unforeseen cases, such as illness or death of a relative, notification of absence will be communicated as soon as possible.

In any case, the justification must be accompanied by an official document, be it a medical certificate, a temporary disability certificate, a declaration of presence or a marriage and/or death certificate.

Which justified absences are not paid?

As we have already mentioned, although the majority of justified absences do not result in the loss of the worker’s rights, in some cases they do result in the loss of wages. This is the case of absences due to:

• Illness
• Accidents at work
• Assistance to a family member
• More than 30 days a year
• Employer authorization