Determining absences for the death of a family member: Consecutive calendar days or business days?

In its ruling dated April 19, 2023, the Supreme Court of Justice ruled that the reference to “consecutive days” in a clause of a collective bargaining agreement (“CBA”) should not be interpreted as referring exclusively to business days or workdays, but rather to consecutive calendar days.

The Supreme Court of Justice’s ruling is primarily based on two arguments:

1.    The interpretation of the clause in light of general principles of law

2.    The scope of application of a CBA, which covers multiple employees and timetables

Regarding the first argument, the Supreme Court of Justice stated that CBAs must be interpreted in accordance with the rules of legal interpretation, with an emphasis on their literal wording.

Therefore, the literal meaning of the term “consecutive days” should be uninterrupted days and not business days or workdays. If the parties to the CBA had intended to give it a different meaning, they would have expressed it clearly, just as they had in other clauses where they used the term “consecutive business days.”

Regarding the second argument, the Supreme Court of Justice held that interpreting “consecutive days” as workdays would lead to unfair discrimination. This is because CBAs cover multiple employment relationships, including employees working only a few days a week. To illustrate the point, an employee working only one day a week would be entitled, in the event of the death of his or her spouse, to a justified absence of 5 consecutive weeks (20 workdays, if we were to apply this interpretation to article 251 of the Labor Code).

Relevance of the case

The discussion surrounding the meaning of the term “consecutive days” arises in relation to the interpretation of article 251.1 of the Labor Code. According to this provision, “employees are entitled to justified absence for:

(a)  up to 20 consecutive days in the event of the death of their non-separated spouse or equivalent, their child, or their stepchild;

(b)  up to 5 consecutive days in the event of the death of a relative or first-degree family member in the direct line, not covered in the previous point; and

(c)  up to 2 consecutive days in the event of the death of another relative or family member in the direct line or in the second degree of the collateral line.”

However, the interpretation of the Supreme Court of Justice’s ruling, although supported by certain scholars, diverges from the interpretation adopted by the Authority for Working Conditions (“ACT”) and other scholars.

In fact, in Technical Note 7, the ACT states that absences due to the death of a family member cannot include rest days or public holidays.

According to the ACT, the concept of absence in article 251.1 of the Labor Code implies that employees are absent from their workplace during the regular daily working hours. In other words, the term “consecutive days” mentioned in article 251.1 should be understood as referring to business days or workdays, rather than consecutive calendar days.

Therefore, uncertainties remain regarding the correct method for calculating days of absence following the death of a family member. This is because the ACT is the competent body for overseeing compliance with labor regulations, and there is no indication that it intends to modify the above guidelines in response to the Supreme Court of Justice’s ruling.

Consequently, employers are faced with the task of choosing which interpretation to adopt. However, they should thoroughly evaluate the potential risks of adopting an interpretation that contradicts that of the ACT. In the event of an ACT inspection, the company may be found guilty of a serious administrative offense, resulting in the imposition of a fine, which its officers, managers, and directors will have joint and several liability for paying.