How are vacations and Christmas Bonus pay for employees who had their employment relationship agreement been suspended?

The Publicada pela Secretaria Especial de Previdência e Trabalho em 18 de novembro, a Technical Note 51520/2020/ ME, published by the Special Secretariat for Social Security and Labor on November 18, clarifies the main doubts of employers about vacations and Christmas Bonus pay of employees who have made an agreement to suspend the employment contract due to the state of public calamity.

See the following guidelines for the main issues:

The worker’s employment relationship agreement was suspended, based on the Law 14020/20. Does the vacation acquisition period have changed?

Yes. The contract suspension period, in this case, is not counted for the purposes of the acquisition period. Thus, the acquisition period starts to count after the suspension ends. For example, a worker who had the contract suspended for 60 days will have his acquisition period added in 60 days (therefore, it will be one year and two months).

Is the change of the acquisition period mandatory? Can we maintain the one-year period?

The employer may, by agreement or even by liberality, apply rules to the worker that are more favorable. In this case, the employer may maintain the "standard" acquisition period of vacation of one year, if preferred.

Is the worker who had the employment relationship agreement suspended throughout the year entitled to receive the full Christmas Bonus pay?

The suspension period does not compute for the Christmas bonus calculation. Thus, if the worker had the employment relationship agreement suspended and therefore worked less than 15 days in a given month, that month will not be included in the assessment. For example, a worker had his employment agreement suspended from June 10, 2020 to August 10, 2020. In this case, the months of June and July do not count for the 13th salary, as there were only nine days of work in June and no day in July. August, in its turn, enters in the calculation because there were 21 days of work in the month. In this way, the employee would be entitled to receive ten twelfths of Christmas bonus in 2020.

However, similarly to vacations, the employer may choose to pay the full amount to the employee, as this method is more favorable.

However, similarly to vacations, the employer may choose to pay the full amount to the employee, as this method is more favorable?

No. The Christmas Bonus must be calculated and paid considering the employee's "full" salary, not computing the proportional reduction that may have been adjusted throughout the year.

Source: Brazilian Federal Government/eSocial