Can you force an employee to take a day off?

In Aruba this may be a question some employers deal with each year. For example, this Thursday it’s King’s Day, which is a national holiday. A lot of people will have a day off. For most civil servants Friday will also be a day that must be taken off collectively, the so called (“Collectieve ATV-dagen”). Can an employer also close shop, just like the government and also force its employees to take an extra day off this Friday or the Friday after Ascension day??

Monday is Labor Day (also a holiday), so some employees will be jumping at the opportunity to have an extra-long weekend, a staycation. Wouldn’t you?

There may also be some employees who don’t like the idea of being forced to take a vacation day. They would rather work and take one or more vacation days based on their own planning. In those cases, other questions come up. Can the employer still unilaterally impose a collective vacation day and deduct it from an employee’s vacation balance? Even if the employee does not want to use a vacation day?

The general rule in our Civil Code (article 7:638) is that an employer determines the vacation according to the wishes of the employee, unless there are weighty reasons against it. What qualifies as a weighty reason? An example hereof is if honoring a request for vacation leads to a serious disruption of the business. So, the general rule is that an employer can’t unilaterally impose vacation days. Prior to the changes in our Civil Code, such a unilateral decision has been ruled to be against what can be expected from a good employer. The employer used to have more freedom before the changes to our Civil Code effective September 1, 2021.?

However, an employer is not without options. Parties can agree in a collective workers agreement (CWA) or in an employment contract that vacation days can only be taken in certain periods. Certain companies have a collective vacation period, such as (in the past) the construction vacation.?

Parties can even agree that an employer may designate a certain number of mandatory vacation days each year. It is advisable to communicate any mandatory vacation days in advance, for example at the beginning of each calendar year. Also keep in mind that an employer has more freedom for vacation days that are above the legal minimum.?

I would like to mention though that any agreement may be scrutinized in court and may be deemed in violation of good employer practices or the intention of the law. Employees have even challenged CWA clauses in court. Based on case law, even your agreed upon vacation rules may be evaluated on a case-by-case basis on general concepts such as whether an employer acted as a good employer and whether an employee acted as a good employee.?

The main take away? Act reasonable and do not abuse your authority as an employer.?