Legality of “absence-before/after” rules and what employers/HR often get wrong

Holiday pay disputes in the Philippines usually come from one collision: the general wage principle of “no work, no pay” versus the statutory mandate that certain holidays must still be paid even if no work is done. Employers sometimes try to enforce attendance by adopting “must be present the day before and the day after the holiday” (or “sandwich”) rules. Whether those rules are legal depends on what kind of day it is (regular holiday vs special day), the pay scheme (monthly vs daily), and what the law actually allows as conditions for entitlement.

1) The baseline: “No work, no pay” in Philippine labor law

A. What the principle means

As a general rule, wages are compensation for work actually performed. If an employee does not work on a day that is otherwise a working day (and the absence is unpaid), the employer is not required to pay for that day.

B. The major exceptions

“No work, no pay” yields to statutory or contractual exceptions, such as:

Regular holiday pay (work not required; pay still due, subject to conditions in the rules)
Service incentive leave / vacation leave / sick leave (if provided by law, CBA, contract, or company policy, depending on type)
Maternity/paternity/parental leaves and other legislated leaves
Company practice/CBA granting pay for days not worked (which can become enforceable)

So the key question is not whether “no work, no pay” exists—it does—but whether a particular day is legally payable even without work.

2) Know your “holiday” category: regular holidays vs special non-working days

Philippine pay rules treat these days very differently.

A. Regular holidays

Regular holidays are legally paid even if the employee does not work, provided the employee meets the entitlement conditions under the implementing rules.

Typical regular holidays include New Year’s Day, Araw ng Kagitingan, Labor Day, Independence Day, National Heroes Day, Bonifacio Day, Christmas Day, Rizal Day, and religious regular holidays as declared by law (for example, Maundy Thursday and Good Friday are treated as regular holidays in pay rules).

Core rule:

If the employee does not work, the employee is generally entitled to 100% of the daily wage for that day (holiday pay).
If the employee works, the employee is generally entitled to 200% of the daily wage for the first 8 hours.
If the employee works on a rest day that is also a regular holiday, pay is generally 200% + 30% of that 200% (commonly expressed as 260% of the daily rate for the first 8 hours).

Overtime on a regular holiday adds the usual overtime premium computed off the holiday rate.

B. Special non-working days (and special working days)

Special days are treated differently:

Special non-working day: generally “no work, no pay” unless there is a law, CBA, contract, or established company practice granting pay even if no work is done.
If the employee works on a special non-working day, the employee is generally entitled to 130% of the daily rate for the first 8 hours.
If the special non-working day falls on the employee’s rest day and the employee works, the pay is generally 150% for the first 8 hours.

Special working day (a day declared “special” but working) generally follows ordinary pay rules unless the proclamation or law sets a premium.

Practical consequence: Many “attendance conditioning” policies are more legally flexible for special non-working days because the law usually does not mandate pay when not worked, while regular holidays are mandated (subject only to legally allowed conditions).

3) Monthly-paid vs daily-paid employees: why this matters for “holiday pay”

A. Monthly-paid employees

A true monthly-paid employee is typically paid for all days in the month, including rest days and regular holidays, through a monthly salary that already factors them in.

For regular holidays, the pay is usually already built into the monthly salary.
Deductions for absences must still follow lawful wage deduction rules and company policy, but the employer cannot invent conditions that effectively forfeit statutory holiday pay.

B. Daily-paid employees

For daily-paid employees, holiday pay is more visible because it’s paid as a specific day’s pay.

Regular holiday pay becomes a direct statutory entitlement—again, subject only to conditions allowed by the implementing rules.

4) The legally permitted condition for regular holiday pay: the “day-before” rule (and its limits)

The implementing rules on holiday pay set a commonly litigated condition:

A. The “workday immediately preceding” condition

For regular holidays, an employee may lose entitlement to holiday pay if the employee is absent without pay on the workday immediately preceding the regular holiday.

Important details:

It’s the workday immediately preceding the holiday—not necessarily “the calendar day before.”
- If the day before is the employee’s rest day or non-working day, look to the preceding scheduled workday.
Absent without pay is the trigger.
- If the employee is on an authorized leave with pay (e.g., paid vacation leave, paid sick leave) on the preceding workday, holiday pay should not be forfeited on that ground.
This rule is about entitlement to the holiday pay itself, not disciplinary consequences. An employer may discipline absenteeism if warranted, but discipline is separate from wage entitlement unless the law authorizes forfeiture.

B. Consecutive regular holidays (“double holiday” situations)

When two regular holidays fall on consecutive days, rules and practice commonly treat entitlement as follows:

If the employee is absent without pay on the workday immediately preceding the first holiday, the employee can be considered not entitled to holiday pay for both regular holidays.
If the employee is present or on paid leave on the workday immediately preceding the first holiday, the employee is generally entitled to holiday pay for the regular holiday(s), even though no work was performed on those holidays.

This is one reason employers fixate on “attendance before the holiday.” But note: the law’s condition is “workday immediately preceding”—not a broader “before and after” attendance test.

5) Are “absence AFTER the holiday” rules legal for regular holidays?

A. The short legal answer

A policy that says “no holiday pay unless you are present the day after the holiday” (or “must work both before and after”) is legally vulnerable when applied to regular holidays, because it imposes a condition not found in the holiday pay rules and may result in unlawful withholding of a statutory benefit.

B. Why it’s problematic

Holiday pay is a labor standard benefit. Employers cannot reduce or defeat labor standards by imposing additional conditions beyond those recognized by law and its implementing rules.
The recognized statutory condition is tied to absence without pay on the workday immediately preceding the holiday (and related clarifications), not the day after.
Withholding statutory holiday pay based on an “after” requirement is often functionally a penalty imposed through wage forfeiture rather than through disciplinary processes.

C. What employers can do instead (without touching statutory holiday pay)

Enforce attendance and punctuality via disciplinary action consistent with due process (notice and hearing standards for penalties), if the absence is wrongful.
Manage leave privileges (e.g., approval/denial of discretionary leaves) under lawful policies.
But do not condition statutory holiday pay on attendance after the holiday.

6) The “sandwich rule”: treating absences around holidays as one continuous leave

Many companies call their policy a “sandwich rule,” meaning:

If an employee is absent before a holiday and absent after, the holiday in between is treated as unpaid and charged to leave or tagged as absent without pay.

A. For regular holidays

Applied strictly to regular holidays, a sandwich rule is risky if it:

Converts a legally paid regular holiday into an unpaid day, or
Adds new disqualifications (like “absence after”) beyond those recognized by the implementing rules.

A lawful analysis usually turns on this distinction:

Is the employer merely treating the surrounding days as leave/absence days (which may be unpaid)? That can be legitimate depending on leave approvals and policy.
Or is the employer also withholding the regular holiday pay itself because of “absence after” or “must work both sides”? That is where legality problems arise.

B. For special non-working days

For special non-working days, the sandwich rule often has more legal room, because pay on special non-working days is generally not mandated if not worked. However, it can still become unlawful if:

The employer has a CBA/contract promising pay, or
There is a long-standing company practice of paying special days that has ripened into a benefit (non-diminution issues).

7) Holiday pay vs leave pay: common scenarios and correct outcomes

Below are frequent fact patterns that trigger disputes.

Scenario 1: Absent without pay on the preceding workday (regular holiday)

Outcome: Holiday pay may be denied for that regular holiday, consistent with the implementing rule.

Scenario 2: On approved paid leave on the preceding workday (regular holiday)

Outcome: Holiday pay should generally still be due, because the rule is “absent without pay.”

Scenario 3: Preceding day is rest day; employee absent on the last working day before that

Outcome: The reference point becomes the workday immediately preceding. Employers should not mechanically use the calendar day.

Scenario 4: Employee is absent without pay on the day after the regular holiday

Outcome: That absence can be treated under attendance/leave rules for that day, but the employer generally should not withhold the holiday pay solely because of that “after” absence.

Scenario 5: Consecutive regular holidays (e.g., Maundy Thursday and Good Friday)

Outcome: If absent without pay on the workday immediately preceding the first holiday, holiday pay may be denied for both; otherwise holiday pay should generally be due.

Scenario 6: Special non-working day; employee does not work

Outcome: Generally unpaid unless company policy/CBA/practice provides otherwise.

Scenario 7: Special non-working day; employee works

Outcome: Premium pay is generally due (commonly 130% for first 8 hours; higher if also rest day).

8) Can employers lawfully require “present before and after” for ANY purpose?

A. For regular holiday pay entitlement

As a condition to receive statutory regular holiday pay, requiring presence both before and after is generally not defensible because it adds a requirement not found in the implementing rules and can unlawfully defeat a labor standard.

B. For granting discretionary benefits beyond the law

Employers can set conditions for extra benefits that are not required by law (e.g., an additional holiday bonus, a special “attendance incentive,” paid special non-working days if not legally mandated), provided:

The condition is not discriminatory or illegal,
It does not undercut minimum labor standards,
It does not violate the non-diminution of benefits rule if the benefit has become established practice,
It is clearly communicated and consistently applied.

9) Non-diminution of benefits: the hidden trap in holiday-related policies

Even when the law says a special non-working day is “no work, no pay,” employers can still get bound to pay it if:

They have consistently paid it over time,
The grant is not clearly discretionary each time,
The practice becomes a benefit that employees have come to rely on.

Once it becomes a company practice that qualifies as a benefit, removing it can violate the rule against diminution of benefits. This often happens with:

Paying special non-working days even when unworked,
Paying “bridging days” between holidays and weekends,
Paying additional holiday premiums beyond the minimum.

If the employer then introduces a “before/after attendance” rule to restrict a benefit that has become established, the employer risks a diminution claim.

10) Wage deductions and withholding: limits even when the employee is at fault

Even if an employee is clearly at fault for absences, the employer must still follow legal limits:

Wages for time actually worked must be paid.
Deductions from wages generally require a lawful basis (legal authorization, employee authorization where allowed, or recognized exceptions).
Using wage forfeiture as punishment (e.g., withholding statutory holiday pay) can be treated as an unlawful circumvention of labor standards.

11) Practical compliance guide: what policies are usually safe vs risky

Generally safer approaches

Apply the regular holiday pay rule based on absence without pay on the workday immediately preceding the holiday (and handle rest days correctly).
Treat “day after” absences as a separate attendance issue, not a holiday-pay forfeiture trigger.
If paying special non-working days by policy, define whether it is:
- Contractual/guaranteed (harder to condition later), or
- Discretionary and clearly announced per occasion (still must be applied fairly).
Keep written rules consistent with DOLE standards and implement them uniformly.

High-risk approaches (especially for regular holidays)

“No holiday pay unless present both before and after the holiday.”
“If absent after the holiday, the holiday becomes unpaid.”
Blanket sandwich rules that automatically convert a regular holiday into an unpaid day regardless of the “workday immediately preceding” test.
Retroactively changing long-standing paid-holiday practices without assessing non-diminution risk.

12) Enforcement and remedies (employee and employer side)

A. If holiday pay is unlawfully withheld

The dispute is commonly framed as:

Underpayment/nonpayment of wages/holiday pay, a labor standards violation.

Employees may pursue the matter through the labor standards enforcement mechanisms (commonly DOLE for labor standards issues within its coverage), and claims may include:

Payment of withheld holiday pay and differentials,
Possible administrative findings and compliance orders depending on forum and coverage.

B. Employer defenses that commonly succeed (when true)

The day in question was a special non-working day, and there was no policy/practice/CBA granting pay if unworked.
The employee was absent without pay on the workday immediately preceding a regular holiday.
The employee is not entitled due to legitimate classification or scheduling rules properly applied (e.g., the “workday immediately preceding” properly identified in a compressed workweek).

C. Defenses that commonly fail

“Company policy requires presence before and after” used to defeat statutory regular holiday pay.
Treating the calendar day before as controlling when it is not the employee’s actual preceding workday.
Claiming “monthly-paid employees aren’t entitled to holiday pay” as a reason to withhold pay (monthly pay generally includes it; the issue becomes improper deductions rather than entitlement).

13) Key takeaways

Regular holidays are paid by law even if unworked, subject mainly to the condition tied to absence without pay on the workday immediately preceding the holiday (properly determined).
Special non-working days are generally “no work, no pay,” unless pay is granted by law, contract/CBA, or established practice.
For regular holidays, “must be present the day after” and broad before-and-after conditions are generally not lawful bases to withhold statutory holiday pay.
Employers may address absenteeism through discipline, but should not convert statutory wage entitlements into penalties.
If a company has long paid certain holiday-related days (especially special days), non-diminution issues can arise when the employer later tries to restrict or remove that benefit through attendance conditions.