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Early holidays in SP: how can the employer act?

Municipal Law No. 17,341, of May 18, 2020, of the city of São Paulo, provides in its article 3 that "the Executive Branch is authorized to anticipate municipal holiday, by decree, during the current public health emergency of international importance resulting from coronavirus".

Based on this law, the City of São Paulo has just issued Municipal Decree No. 60,131/2021, which determines the anticipation of the holidays below:

  • Corpus Christi – June 3, 2021
  • Black Consciousness – November 20, 2021
  • City Anniversary – January 25, 2022
  • Corpus Christi – June 16, 2022
  • Black Consciousness – November 20, 2022

The holidays listed above will be anticipated from Friday (26/03) and will be closed on Sunday (04/04).

Therefore, we envision that the employer can adopt one of the following options:

(i) granting of holidays on early dates, according to the decree;

(ii) maintenance of the office on holidays with double payment (art. 9 of Law 605/49);

(iii) maintenance of the office by using a bank of hours;

(iv) the realization of compensation by individual agreement.

The option (i) seems to us to be the safest and most legally simple, but its feasibility, from a practical point of view, will depend on the flexibility of the work schedule. If it is not feasible for the company to grant all these holidays, the remaining options remain.

The option (ii) is equally safe, but costly for deeming payment of double worked holidays.

The option (iii) is more feasible for companies that already have Banco de Horas, preferably entabulados with the participation of the Union of the category. In this case, if the agreement is signed individually with the employee, compensation will have to be made within a period of six months and if it is with the Union, compensation can be made within a period of one year. If hours are not cleared within these periods, they must be paid as overtime.

The option (iv) requires to enter into an individual agreement and compensation must be made at the latest in the same month, so it would not be the most indicated, as there are many holidays to be compensated in a short time. It is also noteworthy that there is a strong jurisprudential current that understands that the compensation of labor holidays should be made in the same week, by analogy to OJ No. 410 of SDI-1 of C. TST. Thus, for safer conduct, compensation would have to be made in the same week, which makes this option even more difficult to put into practice.

Given the above options, one possible solution would be to offer a rotating calendar if the company does not have a time bank. That is, you can divide the team into shifts and organize time off and compensation over the next week and next, in order to ensure that there is work every day, even with fewer people. To do this, it is sufficient to enter into the individual agreement.

In addition, the options that can be used in a merged way, since it is possible that each holiday day is treated differently. It is important, however, to observe the particularity of each legal type of day compensation.

In any case, it is important that the company complies with the Collective Conventions and Agreements, obeying any existing rules regarding the compensation of holidays.

If you have any questions, contact a lawyer to review your company's specific situation and help avoid future questioning with a schedule appropriate to the law.

Finally, it is noteworthy that Municipal Decree No. 60,131/2021 "does not apply to health, urban safety, social assistance and funeral services, in addition to other activities that cannot be discontinued".


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