Leave of absence without retention of work remuneration

  • 2009-11-04
  • By Annija Melko [Kronbergs & Cukste]
Section 149 of the Labor Law sets out the right of an employee to annual paid vacation, which technically cannot be shorter than four calendar weeks, not including holidays. Under the law, annual paid vacation is to be set for specific dates in consultation with the employee, but must include an undivided two week period. In practice, in many workplaces there is a lot of flexibility on vacation date setting, which includes not abiding by the two week unbroken period requirement. Such flexibility in general benefits the employees concerned (if we dismiss, as we probably should, the paternalistic ILO requirement that the employee must have at least two continuous undivided weeks for reasons of health).

Nevertheless there is another form of leave besides standard vacation. Under section 153 of the Labor Law, an employee has the right to leave without pay in the following cases:
1)    where an employee who has adopted a child pursuant to Latvian adoption proceedings setting out the duration for such leave so requests; or
2)    where an employer at the request of the employee grants unpaid leave to the employee.
In the event that unpaid leave is requested by an employee basing its request on the decision of the orphan court ruling that, regarding an adoptee care and support, the orphan court ruling is mandatory.

If the employee requests an unpaid leave of absence for some other reason, then the employer is not required to grant such leave. The law does not regulate the minimum or maximum period for such leave. The duration of such unpaid leave of absence is a matter about which the employer and employee should set out to jointly decide, but ultimately it is up to the employer.
Other than providing that the employer may grant unpaid leave at the request of the employee, there is no elaboration of the process of granting such leave. There is no particular form set out for the manner of application for the unpaid leave, which can be in writing or theoretically also given on an oral basis.

It is suggested that where such discussions are entered into, where an employer agrees to the unpaid leave request, it confirms in writing to the employee that the unpaid leave is granted pursuant to the employee request for same. In addition to setting out its decision to grant the unpaid leave in writing and stipulating that it is at the request of the employee, the employer should require the employee to confirm its agreement to this in writing on the same document. This will help to prevent misunderstandings down the road concerning the basis and terms of the leave.

In the current challenging economic times employers sometimes believe that they can apply forced unpaid leaves of absence without consent of the employees concerned, as a cost saving measure. To believe so is folly. The law clearly sets out that an employee may request such unpaid leave, and based on the principles of statutory construction, this amounts to granting exclusive rights to the employee to make the request to effectuate such leave. The corollary to that is that the employer does not have any statutory basis for implementing unpaid leave against the express consent of the employee.

Annija Melko is an asssociate at Kronbergs & Cukste, a Latvian law firm which together with its partners in Baltic Legal Solutions, is dedicated to providing quality legal services across the Baltics.  Baltic Legal Solutions is represented in Lithuania by Jurevicius, Bartkus and Partners, and in Estonia by Glikman & Partnerid.