The Labor Code was amended by Law 12/2015 which requires that several types of vacation will be considered seniority. Thus, some holidays to which the employees are entitled (including the sick leave) are regarded as periods in which they worked.

The legal document, published in the Official Gazette on 22 January 2015 and entered into force on 25 January 2015, provides the length of worked activity for determining the duration of the annual leave the following:

• the periods of temporary disability;
• the corresponding period of maternity leave;
• those for maternal risk;
• the periods of sick child care leave.

Thus, the number of days of annual leave to which the employees are normally entitled are not affected by the aforesaid periods of vacation.

The expression on annual leave which “is given proportional to the activity performed in a calendar year” is replaced by the law 12/2015 with the following: “the effective period of annual leave shall be determined in individual labor contract, respecting the law and the applicable collective labor contracts.”

The law 12/2015 introduces also the point that the employee will be entitled to an annual leave even in case of sick leave will stretch during a calendar year. The employer is obliged to pay the annual leave during a period of 18 months, since following that in which the employee was on sick leave.

Given that the period of work temporary disability, maternity and maternal risk and sick child care leave occurs during the annual leave, the last will be interrupted and resumed after completion of other types of vacation. If the resumption of the annual leave is not possible immediately, the annual leave will be rescheduled.

Furthermore, the law 12/2015 amends also the term of the not taken annual leave for the afferent year. Thus, if in Article 146, paragraph (3), the Labor Code provided that “The employer is obliged to grant the annual leave by the end of next year, to all employees who in a calendar year did not perform the full annual leave to which they were entitled.”, the law 12/2015 provides:

“(2) If the employee, for justified reasons, cannot perform, full or partial, the annual leave to which he was entitled in that calendar year, with the consent of the person concerned, the employer is obliged to grant the annual leave not taken in a period of 18 months since the right to annual leave was born.”

The unexcused absences from work and the unpaid vacations are diminished the seniority, according to Law no. 12/2015 which modifies the Labor Code in 2015. The exception in this case is on unpaid leave for professional training.

The Labor Code 2015, in accordance with European legislation

The Labor Code was amended by Law 12/2015, in accordance with European legislation regarding the duration of annual leave to which an employee is entitled when he have sick leave.

The article 145, paragraph (2), provided that the effective period of annual leave shall be determined by the individual labor contract and grant proportional to the activity performed in a calendar year. Based on this provision, the sick leave reduced the annual leave and this was in contradiction with Article 7 of Directive 2003/88/EC.

On this line, the Labor Code is amended by deleting “be granted in proportion to the work performed in a calendar year” and introducing the aspect that the employee will be entitled to an annual leave even in case of the sick leave lasts for an entire calendar year. Thus, the employer will be obliged to pay annual leave during a period of 18 months, since following that in which the employee was on sick leave.

The periods of temporary disability, the corresponding to the maternity leave, of the maternal risk leave and parental leave periods are considered performed work activities and, consequently, are taken into account in determining the duration of the annual leave.

In practice, the provisions of Directive 2003/88/EC, based on Article 148, paragraph 2 of the Constitution of Romania were already applied. This amendment to the Labor Code reconciles the legislation in Romania with the European regulations.

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