Holidays in the Costa Rican employment context

The treatment of holidays in the employment context generates constant questions and reflections, both for employees and employers. Among the many questions that may arise regarding this topic, the main and most frequent one is whether or not there is an obligation to work on those dates. To answer this question, it is essential to determine which days are holidays and then refer to the applicable regulations, that is, the Labor Code, and subsequently analyze how case law has interpreted those regulations in specific cases. First, there are two types of holidays:

1- The following are mandatory paid holidays: January 1 (Circumcision-New Year’s Day), April 11 (Juan Santamaría Day), Holy Thursday and Good Friday, May 1 (International Workers’ Day), July 25 (Annexation of the Party of Nicoya to Costa Rica), August 15 (Mother’s Day and Assumption of the Virgin), September 15 (National Holiday Commemoration of Costa Rica’s Independence), and December 25 (Nativity of Jesus Christ).

2- The following are non-mandatory paid holidays: August 2 (Day of Our Lady of the Angels) and October 12 (Day of Cultures).

Regulation of holidays in the Labor Code

Accordingly, regulating the above, Article 147 of the Labor Code provides that all days of the year are working days, except holidays and weekly rest days established by law or by agreement between the parties.

ARTICLE 147.-
All days of the year are working days, except holidays and weekly rest days existing by legal provision or agreement between the parties.

Thus, holidays are conceived as rest days for employees, which reinforces their protective nature when analyzing each case. However, this is not absolute. The legal system provides exceptions that allow certain employers to require their employees to work on holidays. These exceptions respond to the nature of certain activities that cannot be interrupted without causing relevant harm, whether to the public interest, production, or the operation of the company. In this regard, Article 151 of the Labor Code establishes:

ARTICLE 151.-
The following persons are also exempt from what is ordered in Article 149, namely those who are exclusively engaged in:

a. Work intended to repair damage caused by force majeure or fortuitous event, provided that the repair cannot be postponed;

b. Work requiring continuity due to the nature of the needs it satisfies, for technical reasons, or for reasons based on the advisability of avoiding significant harm to the public interest, agriculture, livestock, or industry;

c. Works that, by their nature, can only be carried out in certain seasons and depend on the irregular action of natural forces; and

d. Work that is necessary and cannot be postponed for the proper operation of a company.

e. Work not included in this and the preceding articles, provided that the employee voluntarily consents to work on the following holidays: March 19, April 11, Corpus Christi, June 29, August 2 and 15, October 12, and December 8.

(As added by Article 1 of Law No. 1090 of August 29, 1947)

(Note: See Law No. 7619 of July 18, 1996, under which March 19, Corpus Christi, June 29, and December 8 ceased to be holidays.)

Exceptions for working on holidays

The foregoing allows us to glimpse the legislator’s intention to create exceptions for companies where there is an urgent need to continue the service offered or for justified technical reasons. Therefore, the employer may request that its employee actually work on a holiday, and this would not constitute an arbitrary decision, but rather a possibility conditioned on the existence of an objective and reasonable cause justifying the provision of services on such days.

Unjustified absence of the employee

In Ruling No. 00478-2017 of March 24, 2017, issued by the Second Chamber of the Supreme Court of Justice, a case was resolved in which a termination without employer liability was declared valid against an employee who was absent on Holy Thursday and Good Friday. In that case, the clear and mandatory request, in accordance with the applicable regulations, was considered a determining factor, not as a merely optional request, but as a call to work based on a real need. In this regard:

Although Article 149 establishes the prohibition for the employer to employ workers during holidays, even providing for a fine against the employer if it does so, in addition to the corresponding compensation that must be paid to the employee, Articles 150 and 151 establish exceptions to this rule. Thus, subsection b) of Article 150 provides, among others, that bakeries may employ their workers on holidays.” Having said this, and after analyzing the challenged ruling, this Chamber considers that the claimant’s arguments are unfounded. The absence on March 28 and 29 could not be justified on the grounds that the poster suggested the possibility of not attending work, because the announcement expressly had mandatory content calling employees to work due to the production conditions of 2013. It should be noted that the poster visible on folio 239 of the complete court file referred to the urgency of grinding sugar cane continuously during the dry season, warning of the sacrifice and effort involved in working on those days and establishing remuneration or “recognition” of ten ordinary hours in addition to double payment for a holiday. Furthermore, the poster mentioned in its lower section Article 151 subsection b) of the Labor Code, as a clear indication that the call was mandatory and not optional.

The foregoing criterion allows us to understand that when the employee is required to work on a holiday due to a valid justification, an unjustified absence may therefore generate disciplinary consequences and even termination. In such cases, the absence may constitute misconduct under Article 81 subsection g) of the Labor Code, which regulates unjustified absenteeism.

Limits on employer authority

However, there are also opposing criteria, such as that reflected in Ruling No. 00889-2016 of the same Chamber, which analyzed a very similar case but ruled in favor of the employee —the opposite result from the ruling analyzed above. The key difference lies in the specific facts of the case. In the 2016 ruling, it was proven that the employee was physically exhausted, that he was usually not allowed to enjoy vacation time, and that his working day exceeded ordinary limits. Likewise, it was not proven that there was a real and urgent need justifying the obligation to work on those days, and therefore the validity of the termination was not recognized.

That is, the specific need for the claimant to provide services during those holidays was not proven. Now, also considering that the claimant had not enjoyed his vacation periods and worked exhausting twelve-hour daily shifts, the employer’s provisions regarding Mr. [Name 001] were clearly abusive, which forced the claimant, due to a personal need, to be absent during legal holidays. It is the opinion of the undersigned that the dismissal cannot be upheld as justified under the situation described, since beyond the legal considerations, the claimant enjoys the fundamental right to rest as a prophylactic right for the recovery from the fatigue to which the employee was exposed (Articles 56 and 59 of the Political Constitution of Costa Rica).

This analysis therefore shows that it is not enough for the employer to order work on a holiday; it is essential that such order be duly justified, and proportionality and reasonableness are essential criteria for assessing each case, in accordance with the applicable regulations.

Obligation to work on holidays: final analysis

In conclusion, working on holidays is not a general obligation, but rather an exception that must be supported by specific causes provided by law. Case law has made it clear that each case must be analyzed according to its particular circumstances, assessing both the employer’s justification and the employee’s conditions.

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FAQ on holidays in the Costa Rican employment context