Since 2017, the Ministry of Labor issued a Unified Concept in connection with the provisions of Act 1857 of 2017, whereby a family day was implemented with the obligation upon employees to grant the semi-annual family day.
Through this concept, the Ministry allowed for the understanding of obligations set forth on family law, as follows:
A. With Act 1857 of 2017, two obligations were established upon the employer:
1. An option consisting on rendering flexibility to work hours in order for the employee to attend to the members of his family group requiring protection and companionship.
To comply with this obligation, the Ministry indicates work hours may be flexible provided this is set forth on the Internal Work Regulations.
In addition, the Ministry indicated the persons upon whom the duty of protection and companionship is granted are: I) spouse, II) permanent partner and III) relatives up to a third degree of relationship by blood;
Also, conditions such as age or disability shall be included under the legal definition of: I) senior adult, II) legal age, III) underage person, and IV) person under a disability.
2. An order to grant a family day during the semester in order for the employee to share with his/her family, therefore the Ministry established there are three (3) was to comply with said obligation:
a. The employer decides as to the place and manner said day shall be executed, undertaking the costs derived from it.
b. Employer shall coordinate the granting of the day with the Compensation Register to which the workers are affiliated.
c. If none of the above alternatives can be materialized, a worker shall be granted a free paid day to share with his/her family.
If the employee chooses the third option, that is, free paid day, the Ministry considered the employer cannot interfere in the manner the employee chooses to enjoy the work day with his/her family, for said reason, the Ministry explained no proof of execution thereof may be requested and shall therefore, trust the employee’s good faith in accordance with article 55 of the Work Code.
B. Given the employee decides when and how said day shall be executed – for example, in a single day for all employees or several days due to service need-, if there are new issues such as entry after the date the day is granted, or if the employee was under sick leave, license, vacation or permit, no additional day need be scheduled for each worker and, in this case, these employees shall enjoy the day established by the employer during the following semester, as the employer is only obliged to schedule one such day per semester.
C. Regarding the possibility of accruing family days that were not granted, the Ministry considered that, although the norm does not contemplate the possibility of accrual, in the event of investigation by the Authority, the granting of these days even outside the period established by the norm shall be deemed a mitigating or extenuating circumstance from liability.
D. Considering the norm allows the employee to require the employee to complement the work day when the semi-annual family day has been granted and no service has been granted between employer and employee may agree as to the manner the hours of the work day are to be completed. For this purpose, the Ministry established that if the employer requests the complementing in hours in excess of the legal work hours of any day, overtime charges are to be acknowledged, whether these are day, night, on a Sunday or holiday.
E. On the other hand, if the employer grants activities due to liberality or conventional benefit such as license due to marriage, on the birth of children, birthday, etc., the obligation is not deemed extinguished, as these activities/benefits pursue purposes other than those established on Act 1857 of 2017; that is, sharing with family.
F. Finally the Ministry stated that, although Act 1857 of 2017 could require regulation in some aspects, this does not exempt the application thereof, as it is mandatory as of the moment it becomes applicable.
Labor Ministry – Unified Concept Act 1857 of 2017