Vacations Instead of 104 Permits Imposed by the Boss: Are They Legal?

Provided for by art. 33 of the well-known 1992 law on assistance, social integration and the rights of disabled people, the 104 permits are one of the main benefits granted to employed workers who have family members with serious disabilities to assist or who themselves are in health conditions deserving specific protection.

Paid, covered by notional contributions and usable for 3 days per month (divisible into hours), the permits are often a source of disputes and conflicts that result in rulings by labor judges.

On the one hand, in fact, there is no shortage of employers who fear abuse and irregularities in the use of these scheduled interruptions of professional services, while on the other hand there are workers who use the permits with far too much casualness and with behaviors that have nothing to do with the purposes of the institution.

In order to avoid possible misunderstandings on the methods of using 104 permits, below we will answer a question that is frequently asked by companies and employees: can the employer impose the use of holidays instead of permits?

Holidays instead of permits: practical cases

The situation is common to many workplaces, such as the import-export office, the store, the professional office or a public administration. With appropriate certification of the serious disability of the person assisted, an employee requests to use the 104 permits but finds, unexpectedly, the door barred by the boss.

To give some practical examples that help us understand better, we can think of the teacher who has completed the application procedure for assistance (as a caregiver) for an elderly parent with a severe disability.

In cases like this, the teacher uses Argo , the school staff platform that allows you to generate requests for permissions and absences by filling out a simple form on the screen. Well, for alleged bureaucratic-organizational reasons, the principal, instead of giving the green light to the authorization, tells the teacher to take some vacation days.

Similarly, consider the administrative employee in a public office who, with due notice, requests to use a day of 104 leave to accompany his disabled mother to a specialist visit.

The manager might reply that, for internal reasons, it would be preferable for him to use a day of vacation.

And, yet another similar practical hypothesis is that of the worker in a metalworking company who asks not to go to work to exceptionally assist her non-self-sufficient father. But, from her boss, she receives the answer that, since she still has some vacation days in arrears, she would do well to use them.

The key point is that, in each of these cases, the use of the 104 permit cannot be conditioned by organizational needs or mere subjective interests . The boss cannot invoke holidays instead of the permit because, simply, the law does not provide any discretionary choice for him.

Permits Law 104/1992
👤 Beneficiaries	Employees with severe disabilities or family members of people with disabilities
📅 Duration	3 days per month, which can also be split into hours
👨‍👩‍👦 Who is entitled to them?	Parents of disabled children Spouse, civil union partner or de facto cohabitant Kinship up to the 2nd degree (3rd in specific cases)
💼 Excluded workers	Self-employed workers, parasubordinate workers, domestic workers
📄 Documentation	Recognition of serious disability (art. 3 paragraph 3 L. 104/1992) Question to INPS and the employer
💰 Pay	They are paid leave, covered by notional contributions
⚖️ Regulatory references	Law 104/1992, Legislative Decree 151/2001 Subsequent INPS circulars

The constant jurisprudential direction of the Supreme Court

At the same time, the jurisprudence of the Court of Cassation has repeatedly reiterated that the 104 permits are a subjective right of the worker and do not meet the limit of the concession of the PA or company. In particular, the Court, with the sentence 3209/2016 has established that the 3 days of leave to assist people with disabilities are not comparable to holidays .

In another previous decision – no. 15435/2014 – the judges stated that the permits do not affect the full entitlements for the purposes of the thirteenth salary and must also be fully computed for the purposes of holidays.

Not only that. With a different provision, sentence 14468/2018 , the Court of Cassation affirmed that the days of leave taken to assist a relative cannot be deducted from the days of vacation . In other cases, however, the judges highlighted abuses by the employee, who used the 104 permits (think of the absence despite the family member being in a nursing home ).

The right to 104 permits is full and unavailable by law

But even before the case law, it is the legislation that removes any possible doubt about the employee's full right to resort to 104 permits, provided that the family member's disability condition is ascertained and recognized by INPS.

No forced substitution is possible, because those who assist a family member with a serious disability – pursuant to art. 3, paragraph 3, of law 104/92 – have a full right to benefit from 3 days of monthly leave covered by INPS.

This right is also unavailable because it is not subject to the employer's acceptance. If the employee meets the requirements, he or she can exercise them without prohibitions, limitations, conditions or alternatives (for example, renunciation for production needs).

To recap, by law this relief:

• it has a clear and binding origin for the parties in the employment relationship given that the law establishes precisely who is entitled to it, how and when they can benefit from it, without referring to the employer's choices;
• contains a welfare purpose that recalls the constitutionally protected right to health, therefore the 104 permits cannot be exchanged for holidays or other types of justified absences, precisely because their objective is very different from rest or psycho-physical recovery;
• It provides for the initiative and direct exercise by the worker, without the need for specific agreements or pacts with the company.

Consequently, if there are obstacles or illegitimate refusals by the public body or company, the employee may first of all present a formal warning and turn to the unions .

These steps could be a prelude to a real court case . In this matter, however, there is a substantial body of case law that defends the use of permits and suggests legal action in case of abuse of the employer's discretionary powers.

Only where a requirement is missing (for example, assistance is not effective), the boss will be able to protect himself by adopting disciplinary measures .

But in general, if there is a disability recognized by INPS and a prior agreement on the days to be used on leave, reasonable and timely communication and scheduling of the days, compatible with the organization, is clearly permitted. The employer cannot decide arbitrarily, overlapping with the needs of the employee.

Finally, we remind you that daily or fractional permits give the right to full pay, paid by INPS but advanced by the employer who then compensates via contribution credit in the Uniemens Flow.