Today, February 5, 2019, the Official Gazette "El Peruano" published Supreme Decree N ° 002-2019-TR, norm that regulates the provisions of Legislative Decree N° 1405, related to a "fractional enjoyment" of paid vacation to favor the relation of work and family life in the Private Sector, among other aspects.
The legal norm will be in force on February 6th of this year 2019 and is applicable to workers subject to the general labor regime of private activity that provide services in the Private Sector.
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1. Which days are been taken into account: calendar or business days?
Calendar days. The vacation period of 30 calendar days for each complete year of services will include: working days, mandatory rest days, holidays, non-working days, among other assumptions arising from the suspension of work that occur during the respective holiday period, except unilateral decision of the employer, agreement between parties, collective agreement or more favorable custom.
2. How should the rest perios be fractioned?
The 30 calendar days of vacations may be divided at the written request of the worker in "two blocks", in the order that the parties equally agree in writing for these purposes.
“First Block”:
Fractioned Periods: A minimun of 15 calendar days.
Fractioning Structure: It must be enjoyed uninterrupted or distributed in two sections: - At least 7 calendar days uninterrupted; and - At least 8 calendar days uninterrupted.
"Second Block":
Fractioned Periods: Remaining period.
Fractioning Structure: It can be enjoyed in minimum periods of 1 calendar day.
The fractioning agreement of the holiday break celebrated in writing between the parties prior to the enjoyment of the vacation is required.
The agreement must specifically indicate the structure of the division, its order, and the starting and end dates.
The opportunity of the holiday break and its division is fixed by mutual agreement between the employer and the worker. In the absence of agreement, the employer decides the opportunity of enjoyment, but not the fractionation.
3. Will it be possible to advance vacation periods?
Yes, in order to advance rest days regarding the vacation period that is generated in the future, a prior agreement between the employer and the worker will be required, which must be recorded in writing (even for a greater number of days than the proportion of the vacation record generated to the date of the agreement).
4. What happens if when the worker goes on vacation the employment relationship ends? And, what happens when the labor relationship remains in force?
If the employment relationship ends before than the "record" set by the Law, the worker's social benefits settlement will expressly detail the compensation for the days of "early rest" with the days that make up the truncated vacation.
The worker will not be obliged to pay or compensate in any way the days of the break in advance that could not be compensated for the truncated vacation.
On the other hand, as long as the employment relationship is in force, the days of rest in advance are compensated with the days of the holiday break once the “record” established in article 10 of Legislative Decree No. 713, Law of Rest Paid, -modified by Legislative Decree No. 1405whose regulations are commented on in this Note-, has been complied.
5. Will reducing periods of vacation rest ("holiday purchase") be possible ?
Yes, the eventuality of purchasing vacation up to 15 calendar days per year, with the corresponding compensation of 15 days of remuneration was ratified by Legislative Decree No. 1405 and requires a written agreement between the parties. It is specified that such reduction can work in the "Second Block" indicated on Point No. 2.
6. Is this legal norm applicable to special labor regimes?
No, the special labor regimes of the private sector are regulated under their own rules.
AOV Abogados
February 2019
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