Right to days for death: clarify your doubts

Do you know how many days you can miss work if your father, son, brother or spouse dies? Learn all about the right to days of death.

When someone close to us dies, the last thing we want to think about is practical things. For this reason, and because death is an inevitability, it is convenient to know in advance what the right to days for death of a family member.

The Labor Code determines that you can miss work between two and 20 days, depending on the degree of kinship with the person who died. This is an excused fault.

Right to days for death and other issues

The right to days for death is provided for in the law among the absences that can be justified, which also include marriage, taking a test in an educational establishment, illness, and assistance to a child, grandchild or other member of the household, among others. others.

According to article 251 of the Labor Codethe worker may be absent for justifiable reasons, and the number of days to which he is entitled depends on the degree of kinship:

• Until 20 days consecutive, due to the death of a descendant or similar in the 1st degree in the straight line;
• Until five consecutive days, due to the death of a spouse not separated from persons and property or a relative or affine in the 1st degree in the straight line. The same applies in the event of the death of a person living in a de facto union or common economy with the worker;
• Until two consecutive daysdue to the death of another relative or affine in the straight line or in the 2nd degree of the collateral line.

It should be recalled that the period of parental mourning (mourning for the death of a child) went from five to 20 consecutive days, following the entry into force of Law n.º 1/2022, which amended article 251 of the Code of Work.

Also according to a technical note of the Authority for Working Conditions (ACT), the count of absences begins on the day of death, however, another time may be agreed or established by instrument of collective labor regulation.

If the death occurs at the end of the day, after the normal daily work period, the counting of absences must start the following day.

Intercurrent rest days and holidays cannot be counted in the count of absences due to the death of a family member, as the worker is not absent from the place where he/she should perform the activity during the normal period of daily work.

That is, these are consecutive days of absence from work and not calendar days.

What is the right to days due to the death of a parent, child or spouse?

The worker has the right to be absent from work for five days in the event of the death of the father/mother, father-in-law/mother-in-law or stepfather/stepmother. The same happens when it comes to the spouse or person living in de facto union or common economy with the worker.

The death of a son/daughter, stepson/stepdaughter or son-in-law/daughter-in-law entitles you to 20 days off work.

As of the date of writing of this article, these are the deadlines in force in the Law, although, recently, it was approved in the Assembly of the Republic that workers will be able to take 20 days off due to the death of their spouse, instead of the current five days. In the case of the death of sons-in-law and daughters-in-law, the absence cannot go beyond five days. In principle, these new deadlines will come into effect in March.

What is the right to days due to the death of a brother, grandfather or grandson?

When it comes to the death of great-grandparents or grandparents, grandchildren or great-grandchildren, of the worker or spouse, absence from the workplace is justified for two consecutive days. The time granted by law is identical in the case of brothers and brothers-in-law.

When is there no right to days for death?

There is no right to justified absence when family members of the 3rd and 4th degree die, such as uncles, nephews and cousins.

However, upon presentation of justification, the employer may, if it so wishes, attribute justified absence to attend the funeral. The supporting document can be requested from the funeral home.

Is absence due to the death of a family member justified?

Yes. Excused absences are those that fall into one of these situations:

• Height of the wedding (for 15 consecutive days);
• Due to the death of a spouse, relative or affine, or other family type;
• Taking a test in an educational establishment (on the day of the test and the day before, in the case of consecutive exams, you can miss the days of the exams);
• Motivated by illness for the necessary time (in case of receiving a subsidy or “dismissal”, the right to remuneration is lost);
• Motivated by the need for urgent assistance to a child, grandchild or another member of the worker’s household (up to 15 days per year for a child over 12 years old, up to 30 days for a child under 12 years old or disabled/chronically ill of any age) ;
• Accompanying a pregnant woman who travels to a hospital located outside the island of residence for delivery;
• Traveling to a teaching establishment for minor children, for the strictly necessary time, up to four hours per quarter, per child;
• Given by the worker elected as a collective representative of the workers (union associations, workers’ commission, representatives);
• Given by a candidate for public office, during the legal period of the electoral campaign (with mandatory 48-hour notice);
• Authorized or approved by the employer.

As can be concluded, justified absence is due to a force majeure reason that leads the worker to violate the duty of attendance. The employer may require proof of the occurrence that led the worker to be absent.

Do absences due to death affect workers’ rights?

No. Dismissals due to the death of a worker’s family member count as justified absences, that is, they do not determine the loss or impairment of any benefits or rights of the worker.

Therefore, this means that there is no place for loss of salary by the worker on days off.

In the already mentioned ACT technical note, it is also mentioned that:

The death of a family member postpones or suspends the enjoyment of vacations, as it does not depend on the worker’s will and makes it impossible to enjoy the right to vacations aimed at the worker’s rest and physical recovery.

Procedures to adopt to be entitled to days for the death of a family member

How long do I have to notify the employer?

When justified absences are intended, the employer must be notified as soon as possible.

In addition, the boss can 15 days following the communication of the absence, demand from the employee proof of the fact invoked for justification. The documentation requested may vary from employer to employer.

In some cases, the waiver for death is granted only with the declaration issued by the funeral home, which certifies that it was present at the funeral of the person entitled to it. Other cases may require a death certificate.

Examples of communication to the employer

At times like this when we feel devastated, only a written document, sent by email or letter to the employer, can serve to inform about what happened.

If you have a closer relationship with your superior or some colleagues and you want to know where the funeral ceremony will take place, you can include that information in the announcement.

Code of conduct in case of dismissal due to death

Remember that you do not have to give more details as this is a private matter and the employer is not entitled to know any details other than that the death occurred and the deceased was a relative of yours.

It may be important to make known the degree of kinship so that the employer can predict the number of days of absence.

Don’t worry about maintaining a 100% “professional” posture, as society in general is understanding and supports the worker in these moments.

If there are times when standards and work protocols go out the window, it is in these cases.