Duty to refrain from contacting employees during vacation

Refraining from contact: Key considerations for employers

The prevalence of digital work has blurred distinctions between working hours and personal time, creating a culture of constant connectivity. Recognizing this challenge, Portugal’s legislature introduced article 199-A of the Labor Code in 2021. This provision imposes a legal duty on employers to avoid contacting employees outside working hours. Far from being a mere reminder to employers of the importance of respecting employees’ free time, this rule constitutes a binding legal obligation, with enforceable penalties for any violations.

Scope of duty to refrain from contact

Employers must refrain from contacting employees during legally designated rest periods. These include vacations, public holidays, days off, rest breaks, and daily downtime outside normal working hours. Unlike an employee’s discretionary “right to disconnect,” this law prohibits employers from initiating or facilitating work-related requests outside legally permitted working hours.

Exceptions: When contact is justified

The law permits contact during rest period only in cases of force majeure. Though undefined in the law, these are unforeseeable, unavoidable events beyond the employer’s control that necessitate immediate action.

In these situations, employers may contact employees outside working hours only when:

1. not doing so may result in or exacerbate serious and immediate harm (e.g., threats to life, physical integrity or critical business operations);
2. no viable alternatives exist for resolving the issue; and
3. communications focus solely on addressing the emergency.

Routine scheduling issues, delays or client demands typically do not qualify as force majeure events. Also, employers bear the burden of proving that a force majeure event has occurred.

As the long vacation period approaches, employers must specifically avoid the following actions:

• Sending emails, text messages or voice messages via any platform, including team WhatsApp groups or company apps.
• Requesting updates or clarifications or requesting tasks—however brief—on ongoing work-related matters involving the employee.
• Assigning tasks during the vacation period, even if due after the employee returns from vacation.
• Contacting employees persistently, either directly or through other employees, until they respond.
• Requesting employees to return early from vacation, except in valid force majeure scenarios that are properly justified and compensated under the law.
• Asking or requiring employees to remain available or attentive to company communication channels during their vacation period.
• Giving instructions on using work-related tools during vacation periods.
• Carrying out any activity that directly or indirectly undermines employees’ ability to remain disconnected.

Consequences of non-compliance

Failing to comply with this duty constitutes a serious administrative offense. Violations confirmed by the Authority for Working Conditions (“ACT”) could result in fines (and ancillary penalties) based on company revenue, culpability and the number of affected employees. Also, any recurring violations could increase the penalties the ACT imposes. However, beyond financial liability, non-compliance exposes employers to reputational risks, making strict adherence essential.

Recommendations and best practices

• Develop internal disconnection policies clearly defining prohibited contact periods, assigning oversight responsibilities, and establishing clear procedures for force majeure scenarios.
• Establish a “continuity plan” identifying in advance substitute employees during planned absences, ensuring operational needs are directed at substitutes rather than vacationing employees.
• Implement automated tools to delete email communications received during vacation periods.
• Add disclaimers to technological work tools explaining employees’ unavailability and indicating that any contact should wait until their return.
• Raise awareness among employees and managers about the importance of disconnection through—for example—training sessions and practical tips for “switching off.”

Conclusion

With the summer vacation period approaching for many employees, employers should bear in mind that respecting employees’ personal and vacation time is more than a legal requirement; it exemplifies responsible workplace management. Specifically, this duty safeguards employees’ health, motivation and productivity. Employers that adopt best practices in this area not only ensure legal compliance; they promote a culture that respects employees’ free time. Such efforts are integral to building both a competitive and sustainable working environment.