The recent Law to Create Paid Leave for the Death of Relatives of Workers (Law No. 10589), which governs the right to mourning, presents some gaps by failing to regulate specific situations in which the law may apply. In particular, questions arise about how this leave should be applied when a worker loses a relative during their vacation, maternity leave, or sick leave.
In the absence of specific regulations or judicial rulings to clarify these issues, it is appropriate to interpret the law based on the purpose of each legal concept.
Vacations
Vacations have a preventive purpose, aimed at ensuring the worker’s physical or mental rest from their job duties. Conversely, mourning leave serves a different objective: to provide time to emotionally process the loss of a loved one and, in some cases, to support other family members.
When a worker on vacation experiences the loss of a relative, they are reasonably prevented from enjoying this rest period as originally intended. Consequently, mourning leave should interrupt the vacation period, allowing the days corresponding to mourning leave to be rescheduled and enjoyed as vacation at a later date.
This reasoning is similar to that applied in cases where medical leave interrupts vacations, as medical incapacity prevents the enjoyment of the vacation period.
Sick Leave
Article 79 of the Labor Code clearly establishes that: "(...) the contract is suspended, without liability for the worker, in the event of verified illness that incapacitates them from performing their normal work for a period not exceeding three months (...)." While the employment contract is suspended, neither party has obligations to the other, except for the employer’s duty to grant leave until recovery and the worker's obligation to rest.
Unlike vacations, mourning leave due to the death of a relative does not interfere with the medical rest required during sick leave, nor does the sick leave interfere with mourning leave. Therefore, both rights can coexist and be exercised simultaneously.
A more controversial situation arises in cases of mental health-related sick leave, where the debate may need to focus on scientific considerations regarding whether mourning leave can or cannot be postponed until full recovery.
Maternity Leave
In the case of maternity leave, the situation is similar to that of sick leave. Mourning leave due to the death of a relative does not affect the rest period before childbirth (1 month of prenatal leave) or the period afterward (3 months of postnatal leave), which are designed for the adaptation of the mother and baby and to ensure breastfeeding. Therefore, both rights can coexist.
Commencement of Mourning Leave
It is important to note that the Law does not specify when the worker can begin using their mourning leave. While logic suggests that it should be the days immediately following the relative's death, it is possible that the courts could interpret this in favor of the worker. This interpretation could allow workers to claim their right to mourning leave after the end of their sick leave (physical or mental), maternity leave, or vacation period.
Exceptional Cases
Finally, exceptional cases may arise, such as the death of a relative on the last day of a vacation, sick leave, or maternity leave. In such scenarios, it would be reasonable to deduct only that day and grant the remaining mourning leave days.
At Bufete Godínez y Asociados, we are leaders in business consulting for labor law in Costa Rica. Our team of labor law specialists is ready to provide top-tier legal support for managing and resolving your company's labor matters. If you need personalized legal guidance to ensure compliance with labor regulations or to address disputes, we are here to help. Click here to learn more and schedule a consultation with our labor law experts.
About the Autor