Floods - who is entitled to special leave?

Up to 7 working days of paid "extraordinary leave" to deal with the consequences of floods

In recent days, we have been watching and experiencing catastrophic floods, people's hardships, as well as a great willingness to help. Thus, in one of the online news, I saw a quote from one of the mayors calling for the Government of the Republic of Slovenia to grant special leave to people to repair damage to their property. So the question arose for me, whether and to what extent this appeal actually makes sense, since laws and other regulations already recognize certain rights of paid or unpaid leave from work for workers, and if it makes sense, what conditions should be set and who will pay for such extraordinary leave. That's why I decided to explain in the article what the rights of workers are already in relation to absence from work due to the elimination of the consequences of floods.

The rights of workers are regulated in employment contracts, the Labor Relations Act (Ur.l. RS, no. 21/13 with amendments, ZDR-1), collective agreements and also internal acts of the employer (for workers in state bodies, I list the rules separately below). All of the aforementioned acts must be taken into account when determining whether or not an employee has the right to extraordinary leave in the event of a natural disaster.

What is special leave?

The concept of extraordinary leave according to ZDR-1 otherwise does not exist. However, as a general rule, we consider paid or unpaid absence from work due to personal circumstances on the part of the employee (e.g. study leave for the benefit of the employee, absence due to the death of a loved one, own wedding, travel, relocation, serious accident for the employee, etc.), which In the following, I use the term extraordinary leave.

Paid extraordinary leave

In accordance with Article 165 of the ZDR-1, the employee has the right to take extraordinary leave for a maximum of 7 working days in a single calendar year, which relates to various circumstances, including: own marriage, death of a spouse or common-law partner, or death of a child, of an adopted child or a child of a spouse or common-law partner, death of parents - father, mother, spouse or common-law partner of a parent, adoptive parent, major accidents affecting a worker, accompanying a child, a first grade student, to school on the first day of school. For each of these circumstances, according to the law, the employee has the right to a paid absence of at least one working day. A natural disaster, flood or landslide, as well as the consequent elimination of the consequences of this disaster, are undoubtedly also considered as a serious accident that affects the worker. Therefore, in accordance with ZDR-1, in principle, the employee has the right to a paid absence from work for up to 7 working days to remedy the consequences of this accident, on the condition that he has not used any days in this calendar year due to other personal circumstances and that any by-laws (collective agreement ) do not limit or otherwise supplement this right.

Thus, collective agreements have a different approach regarding the determination of the number of days of paid absence of an employee (within the legally permissible 7 working days) in case of a serious accident of the employee. For example:

• The collective agreement of construction activities (Ur.l. RS, no. 101/15 with amendments) stipulates up to 7 working days in the event of a serious accident, which is determined by the worker, namely the number of days is determined at the discretion of the employer;
• The collective agreement of commercial activity (Ur.l. RS, no. 52/18 and 155/22) stipulates, in the event of a serious accident, which affects the worker from 1 to 5 working days of paid absence, as well as the right to move for a duration of 1 working day, whereby a change of temporary or permanent residence is not a condition for exercising the right (but it can be more difficult to prove) and it must be exercised upon the occurrence of the event;
• The collective agreement of communal activities (Official Gazette of the Republic of Slovenia, no. 105/21 and 137/22 ) stipulates 1 working day in the event of a natural disaster that affects the worker and his family for an individual case, which is agreed upon by the employer and the worker.
• The collective agreement for paper and paper-processing activities (Official Gazette of the Republic of Slovenia, No. 110/13 with amendments) stipulates 1 working day for major accidents affecting the worker;
• The collective agreement for the activity of metal materials and foundries of Slovenia (Official Gazette of the Republic of Slovenia, No. 78/14 with amendments) for example stipulates 3-4 working days for natural disasters, whereby the employer generally does not have the right to refuse absence.

Since the circumstances of use and the number of days of extraordinary leave according to collective agreements can be different for different activities, I suggest that each employee and employer check what is determined by the collective agreement that applies to each individual employer.

Unpaid extraordinary leave

The employee also has the option of unpaid leave or unpaid absences from work. ZDR-1 does not directly regulate such absence, nor does it prohibit it. Unpaid leave is regulated in some collective agreements, and in addition, unpaid leave is also regulated by the internal acts of some employers, who see such employee rights as added value. For example, I give some such arrangements:

• The collective agreement of construction activities stipulates that e.g. the employee can also agree with the employer on absence from work without compensation in the following cases: urgent personal errands, house or apartment repairs, other absences agreed with the employer, etc. In these cases, the employee does not have the right to wage compensation, but the employer can agree with the employee on the reimbursement of all paid social security contributions (Article 41).
• The collective agreement of commercial activities specifies as an example of a reason for unpaid special leave also urgent personal errands, repair of a house or apartment, namely a maximum of 30 days in a calendar year (Article 52, Paragraph 1, 3). There are also certain restrictions, as the employer can refuse such a request if it considers that the business and/or production process would be hindered due to his absence (Article 52, paragraph 4), and the employee must sign a statement before the absence that in the first allows deductions from the payment of wages for social security contributions paid by the employer and the employee (Article 52, paragraph 2).
• The collective agreement of communal activities specifies as a reason, for example: urgent personal errands and repairs to the house or apartment, whereby the employee must inform the employer about this at least 7 working days before the intended absence and the employer can refuse it if the requirements of the work process do not allow it (Article 42 and Article 43).
• The collective agreement for paper and paper-processing activities does not explicitly list the reasons, but stipulates that the employee must apply for such leave at least 7 working days before the intended absence and that the employer can refuse it if the requirements of the work process do not allow it, and about the payment of contributions the employee and the employer must agree (Article 60).
• The collective agreement for the activity of metal materials and foundries of Slovenia specifies the employee's personal reason as a reason for unpaid special leave, which is approved if the employee cannot take regular annual leave, and the employer can refuse if the current requirements of the work process do not allow such absence; the employee and the employer must agree in writing on the method of using absence from work without salary compensation and the payment of social security contributions for the duration of this absence (Article 28).

I suggest that both the employee and the employer check the provisions of collective agreements and internal acts of the employer, which may regulate certain procedures in more detail or differently than the cases I state in this contribution.

Communication with the employer is essential

The employee is obliged to inform the employer about the circumstances and the use of extraordinary leave and to state how many days of absence he wishes to use. If the employee is only prevented from communicating due to non-functioning means of communication, he must notify as soon as possible. The employee may not be absent from the workplace without notifying the employer, as failure to notify the absence and the reason for the absence may be considered a violation of the employment contract, which may result in disciplinary procedures or termination of the employment contract.

On the other hand, the employer must respond quickly and promptly to any requests and messages from employees.

Agreement on the absence of an employee

The employee and the employer can always agree on either additional paid or unpaid extra leave, as the general rule states that the employee can have more rights agreed with the employment contract than are stipulated by law or the collective agreement.

I would like to point out here that employers are obliged to take into account the principle of equal treatment or the prohibition of discrimination in such a different regulation of rights and obligations, which means that the employer's judgment regarding the allocation of certain rights to an individual employee is not completely arbitrary, e.g. how many days of paid absence will be granted to an individual worker, where this judgment is partially left to the employer by the rules, but the employer must determine objective criteria, which he then follows when approving the number of days of absence. In order to avoid later disputes, I also suggest that the latter be written down, which enables later proof of their relevance, or thereby also ensures the objectivity of the employer's decision-making and prevents possible discrimination of workers.

Special features for workers in state bodies

The above provisions of ZDR-1 do not apply to workers in state bodies in the field of absence from work, because their rights and obligations from work are governed by the Civil Servants Act (Ur. L. RS, No. 63/07-UPB as amended) and also The Act on Workers in State Bodies (Ur. L. RS, No. 15/90 as amended, "ZDDO"), which, in Article 41, provides for the right to absence only from other urgent duties for a duration of 1 working day , such as already explained by the court, this means one day for each non-postponable event in the calendar year, but a maximum of 7 working days in total (Higher Labor and Social Court in Ljubljana, case no. Pdp 293/2022 dated 17.5.2022). The concept of urgent tasks has already been filled by the court and decided that it is any task that cannot be completed later, which, in my opinion, also includes circumstances of force majeure or natural disasters. In addition, the law also stipulates the right of workers in state bodies to 3 working days of paid leave to move to another apartment. In this regard, the law does not provide for proof of a change of permanent or temporary residence for workers in the state administration, so the latter must not be a condition of the employer for using paid leave from this title.

In addition, Article 42 of the ZDDO also gives workers in state bodies the right to absence from work without the right to salary compensation due to urgent duties, if special circumstances require a longer absence, namely up to a maximum of 30 days in an individual calendar year.

So, extra vacation time?

We can conclude that, in accordance with the legal rules, workers already have many possibilities to use extraordinary leave, both paid and unpaid, especially in accordance with collective agreements. The only drawback in this particular case is that, with the current dimensions and the damage caused by the repairs, the provisions of the collective agreements, which stipulate only 1 working day of paid absence for major accidents and natural disasters, may indeed be significantly insufficient for the workers, even especially since some collective agreements also stipulate up to 7 working days for the same case. On the other hand, when weighing the rights of workers and employers, it is necessary to take into account the fact that the rights under collective agreements are rights agreed between workers and employers, so when introducing a new, additional holiday for workers for the rehabilitation of the consequences of floods, in addition to the already existing one, it is already the burden of the employers, who would follow the call quoted at the beginning, a very serious consideration is needed, how many days of such leave are additionally needed, who is entitled to it, under what conditions and, last but not least, who will pay for it.