Commentary on the Ordinance Judgment No. 1227 of 2025: Right to Leave under Art. 33, L. 104/1992

The recent Ordinance No. 1227 of January 17, 2025, issued by the Court of Cassation, offers significant insights into the delicate issue of the right to work leave for the assistance of disabled individuals, as provided by Article 33 of Law 104/1992. The ruling focuses on the determination of abuse of rights, highlighting the need for both quantitative and qualitative assessments of the assistance provided.

The Regulatory Context

Law No. 104 of 1992 introduced important rights for people with disabilities and for those who care for them. In particular, Article 33, paragraph 3, establishes the right to paid leave to assist family members with disabilities. However, the legislator has provided for controls to prevent abuse, which must be conducted with care and respect for the specific circumstances of each case.

Right to leave under art. 33, paragraph 3, of law no. 104 of 1992 - Abuse - Verification - Assessment of the manner of assistance provided - Quantitative data - Insufficiency - Necessity of a comprehensive assessment - Consequences. Regarding the right to leave under art. 33, paragraph 3, the determination of abuse of rights involves verifying the elimination of the causal link between absence from work and assistance to the disabled, to be assessed not only in quantitative terms but also qualitatively, taking into account all the circumstances of the specific case, so that such abuse can only be configured when assistance is completely lacking, or has occurred for such minimal durations, or in such insignificant ways, as to render the safeguarding of the interests of the assisted party and the primary objectives of the assistance intervention intended by the legislator ineffective, for which the employer's right to fulfill the work performance is sacrificed.

Analysis of the Ruling

In the ruling under examination, the Court emphasizes that the determination of abuse must consider not only the number of hours of leave requested but also the quality of the assistance provided. This holistic approach is essential to ensure that the right to leave is not compromised by improper behavior, while at the same time not infringing upon the rights of those who legitimately need assistance.

  • The assessment must take into account all the specific circumstances of the case.
  • A distinction is necessary between justified absence and abuse of rights.
  • The employer has the right to verify the existence of the causal link between absence and assistance.

Conclusions

In conclusion, Ordinance No. 1227 of 2025 represents an important reference point for jurisprudence regarding work leave for assistance to disabled individuals. It highlights how the assessment of abuse requires a balanced approach, capable of protecting both the rights of caregivers and those of employers. It is essential that companies and workers understand the implications related to this regulation to avoid conflicts and ensure the correct application of the rights provided by Law 104.

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