Analysis of the legal opinion provided by the Ministry of Labour in regard to the minimum amount of time to enjoy legal vacations (Article 190 of the Colombian Labour Statute)

At the end of August of 2023, the Ministry of Labour issued a legal opinion in which they analyzed the dispositions stated in Article 190 of the Colombian Labour Statute which establishes the obligation to grant at least 6 continuous days of vacation per year, concluding under this premise, that in their opinion it is not allowed to grant vacations for periods shorter than 6 days.

This point of view from the Government tends to generate controversy and confusion in regard to the practical appliance, due to the fact that it is usual that both employers and employees agree on granting shorter vacation periods because of operational needs or because of the individual resting or traveling plans of each employee.

First, and before presenting our analysis about this subject, it is important to remember that the legal opinions issued by the Ministry of Labour are not binding, and therefore have no force of Law, being mere orientation guidelines.

Nevertheless, in order to review how the dispositions related to the programming of vacation days should be interpreted, it is important to analyze the literal wording of Article 190 of the Colombian Labour Statute which established the possibility of accumulating vacations, stating the following:

1. "In all cases, the employee must enjoy at least six (6) continuous business days of vacations annually, which are not accumulable.
2. The parties can agree to accumulate the rest of the pending vacation days up to 2 years.
3. The accumulation of vacations can be up to 4 years, in the case of technical and specialized employees, employees of management and trust, or foreigners who provide their services in places different from the residence of their family.
4. If the employee only enjoys 6 days of vacation in one year, it is presumed that the rest of the vacations were accumulated.

Therefore, it is clear that there is an express obligation that an employee have at least six days of vacation per year and that this vacation time must be continuous.

However, in regards to the rest of the days of the specific legal period, the legal dispositions do not state any prohibition that limits the possibility to program vacation periods shorter than 6 days, in those events in which the obligation regarding the granting of at least 6 continuous days of vacation per year has complied, as it can be seen on numeral 2 of the aforementioned article, it is stated that the parties can mutually agree on the accumulation of the rest of the days, without establishing any limiting condition.

Hence, we consider that once an employee has enjoyed the minimum amount of 6 continuous days of vacation in a period of 12 months, the employee and his employer can freely and voluntarily agree that the rest of the pending days can be enjoyed on periods shorter than 6 days, reiterating that once the minimum legal number of mandatory days to be enjoyed per year have complied, the Law does not establish any limitations to fraction the enjoyment of the rest of the days that were subject of accumulation.

On the other hand, it is important to highlight that the Ministry of Labour considers that granting only one day of vacation or periods shorter than 6 days, apparently generates that the effective rest of the employee is affected. In regards to this position, we consider that it is an unfortunate and inexact interpretation of the employment legislation, considering the fact that in reality, some employees ask for the granting of fewer than 6 days of vacation, because for example, they bind the days of vacations with legal holidays (such as the case of the easter week) or with the programming of the legal family day, which shows that in reality the purpose of the Law is not being affected, and on the contrary, it is a favorable measure for employees who on one hand are effectively resting, and on the other, are optimizing their vacations, by being able to save some days to be enjoyed later.

Finally, we consider it relevant to provide the following practical tips that can be useful for employers in order to guarantee that their vacation programming is in accordance with the Law:

• In those events in which the vacations are granted unilaterally by the employer and not because of the employee`s request, it is advisable that this programming is not done for periods shorter than 6 days (reminding that in the event of vacations programmed unilaterally, it is mandatory that the employer notifies the employee with a notice not shorter than 15 days before the date in which the vacations would start).
• In those cases in which shorter periods of vacation are going to be programmed (for example when an employee requests for the granting of 2 vacation days to attend personal commitments or to bind them with holidays), it is suggested that there is a formal written agreement between the parties in which it is established that the number of granted days were determined by the express request of the employee.
• Finally, it is necessary to verify that indeed each employee has enjoyed at least 6 continuous days of vacation per year, despite the fact that in regard to the rest of the days, employer and employee have agreed to enjoy some of the pending vacation days on shorter periods.