It is common for companies to encounter, at the time of Carnival, questions about the mandatory dismissal of their employees.
In general, the discussion turns to the fact that Carnival is optional in some cities and holidays in others. This is because this commemorative date is not on the list of national holidays, provided for in Article 1 of Law No. 662/49 (civil holidays). Thus, the decision is left to the municipality of each municipality, which may decide to frame Carnival as a religious holiday or not.
Some places, like Rio de Janeiro, have the custom of decreeing Carnival as a municipal holiday. In this case, the time off in the private sector is mandatory, and the person who works will be entitled to the time off or the double payment, or the rule provided for in a collective rule.
On the other hand, other municipalities, such as São Paulo, usually decree only an optional workday, which serves as a waiver for public servants to work. In this scenario, the optional workday acts literally as an optional work date for companies, and employees who work will not be entitled to double the day’s payment or the respective rest.
If there is no municipal law or decree establishing that Carnival is an optional workday or holiday, the public and private sectors work normally, except for companies that voluntarily decide to grant time off to employees. The only ones who remain with the right to leave during Carnival, regardless of the existence of an optional point or holiday, are those who have this benefit ensured in the Convention or Collective Agreement.
This year, however, the question surrounding Carnival is more complex: During the pandemic, does it make sense for companies to release their employees?
After all, several city halls, such as that of São Paulo, have canceled the optional points of the days of Carnival in an attempt to discourage public agglomeration and, consequently, prevent the spread of Covid-19. On the other hand, the federal government maintained the Optional Workday Decree in the same period. Other locations, in turn, are choosing to keep the Carnival holiday partly (in Rio de Janeiro, for example, only Tuesday).
In this context, it is worth noting that, in cities where Carnival is not a public holiday, it does not matter whether there is an optional workday, as companies can exempt their employees from mandatory attendance, regardless of the public sector’s determination. After all, the granting of time off at the optional workday was never mandatory, unless there is a collective rule to the contrary.
Having made such reservations, in 2021, in the absence of a local rule, the private sector may reflect on whether it will maintain the tradition of granting time off on this commemorative date or whether it will work normally. This decision involves a careful assessment of the collective bargaining agreement, as well as the health situation and cultural and religious tradition of each city.
Our Labor team is available to clarify aspects related to these and other topics.
Co-authored by: Fabio Chong de Lima and Jackeline Gomes Falcão
