22 December 2022

Exemption from work

Following a ruling issued by the Supreme Court of Justice, in October 2022, it was widely reported in various media, the obligation that employers are subject to exempt employees from working when they have children under the age of 12.

Summarizing the issue in question, the worker requested flexible working hours from her employer, more specifically, that her days off be taken on Saturdays and Sundays, due to the fact that she is the mother of two children, aged 6 and 10. Her husband, the children's father, worked shifts on alternate weeks and weekends, claiming that the family income did not allow him to hire a nanny.
Faced with this request, the employer did not show any intention of accepting it in the exact terms, since flexible working hours do not allow workers to choose their days off.
After decisions that initially ruled in favor of the employer, the worker was able to appeal and have the matter considered by the Supreme Court of Justice, which ruled that the worker had the right, in view of the circumstances of her case, not to work on Saturdays and Sundays.
It was the STJ's understanding, on the one hand, that the flexible working hours regime is constitutionally provided for and promotes the conciliation of professional activity and family life. However, the fundamental reason for the rejection of the request lies in the fact that the employer did not use the arguments prescribed by law: a) overriding requirements of the company's operations; b) impossibility of replacing the worker if he is indispensable ("in the case under examination, in order to refuse the Defendant's request, the Plaintiff did not invoke any fact that would make it impossible for the "shop" to function normally, (...) nor did she invoke the impossibility of replacing the Defendant, as she is indispensable").
At this point, two fundamental points should be highlighted: the first is that the question examined in the ruling is not new, and even cites decisions previously handed down. The second is related to the fact that the employer, in an initial phase, did not provide grounds or list the arguments that would possibly have allowed him, without any constraints, to refuse the request.
We therefore conclude that, when the conditions are met, parents of children under the age of 12 may not work on Saturdays and Sundays, provided that the conditions are legally met. Thus, contrary to what the media have reported, the obligation to give time off at weekends is not applied without further ado.