Introduction
Absence of employees from work due to sickness is never a good thing for business operations and finances. A new clause in the recodified Aruba labor law may, in my opinion, be effectively used by the employer in labor agreements to discourage employees from calling in sick frivolously.
The refurbished and recodified Aruba labor law
The Aruba labor law was refurbished in 2013 and recodified in the new Aruba Civil Code (ACC) that came into force in 2021.
Aruba labor law -previously laid out in former Book 7A ACC- is now regulated in Chapter 10 of Book 7 (articles 610-690) that pertains to ‘Special Agreements’ (Bijzondere Overeenkomsten).
The legislation on employees’ vacation -previously regulated by the former Vacation Ordinance- was moved to Chapter 10, Section 3 of Book 7 (articles 634-645). The Vacation Ordinance was retracted and no longer applies.
The recodified version of the Aruba labor law contains certain changes. An example hereof is article 7:638 paragraph 8 (second full sentence) ACC (hereinafter: 7:638 (8) ACC) that concerns the settlement (verrekening) of sick days with vacation days in the event the employee falls sick before a planned (vastgestelde) vacation.
Sick days are regarded as vacation days
Article 7:638 (8) ACC opens the possibility for the employer to agree with the employee that a sick day will be regarded as a vacation day, under the following conditions:
- The clause only applies if the vacation was planned (vastgesteld) prior to him becoming sick.
- Eligible for settlement are only the contractual vacation days that exceed the lawfully prescribed yearly minimum vacation days (as determined under article 7:634 ACC: 3.3 x contractual workhours per week). The current yearly minimum on the basis of a full-time employment is 16.5 vacation days.
- The employer and employee must agree hereto in a written individual or collective labor agreement (ECLI:NL:HR:2023:1603).
The intended effect
The employee would be less inclined to call in sick for minor reasons in order not to lose vacation days. At least, that is the intended effect.
It is further noted that abovementioned contractual clause would have been null and void under former Aruba labor law, as the Vacation Ordinance only allowed for deviations from the ordinance in labor agreements insofar these were favorable for the employee (which above clause is -in my opinion- clearly not).
The employee becomes sick during his vacation
Please note that the above should not be confused with the scenario in which the employee becomes sick during his planned vacation. In that case, sick days may only be regarded as vacation days if the employee explicitly agrees thereto, in each specific case (article 7:638 paragraph 8 first full sentence ACC).