1. 24 days statutory minimum leave – how many weeks off does that mean?
In Section 3 of the Federal Leave Act (BUrlG) it is stipulated that the minimum leave is at least 24 days. However, this assumes a six-day week. Transferred to the conventional five-day week, this results in 20 days of minimum leave and, therefore, only four working weeks. Naturally, employers may grant more leave than that required by law. The legal stipulations do not need to apply in this case and employees need to pay close attention to the relevant agreements.
2. Are employees allowed to take at least two weeks off at a time?
In Section 7 (2) of the Federal Leave Act (BurlG) it states that leave must be granted contiguously. Consequently, employees should be able to take at least 12 days off in a row (or 10 days in the case of a five-day week) once per year. Exceptions are possible due to “urgent operational reasons or reasons relating to the employee”. Collective agreements or company agreements may also contain deviating provisions.
3. Are probationary employees and employees with vacation jobs entitled to leave?
Essentially, all employees are entitled to vacation. This includes working students, interns doing voluntary internships, and employees with a vacation job. Employees are not entitled to the full annual leave until six months after starting a new job according to Section 4 of the Federal Leave Act (BUrlG). This limit has not yet been reached on the last day of the waiting period. Rather, the full six months must have passed for employees to receive their first full vacation entitlement. However, Section 5 of the Federal Leave Act (BUrlG) states that employees are entitled to a proportional number of days off equal to one-twelfth of the annual leave beforehand. This also applies to vacation jobs. In addition, leave is reduced proportionately in the event of termination during the year.
4. Do leave entitlements only expire if employers take action?
Employees must take their annual leave by the end of the year. Otherwise, they face the risk of forfeiting their leave under the Federal Leave Act. In some employment relationships, the expiry date has been agreed as the end of March in the following year. Nevertheless, forfeiture is not a foregone conclusion: According to the case law of the European Court of Justice, leave does not expire automatically. Instead, employers have to notify employees of the imminent forfeiture (C-619/16 and C-684/16). The Federal Labor Court has shared this perspective after reaching a landmark decision. As a consequence, employees must be informed about exactly how much leave they have before the turn of the year. This is recommended at least three months in advance. Employees also have to be notified that their remaining leave will expire at the end of the calendar year if the employees would have been able to take it but failed to do so.
In view of the currently unresolved legal issues in this area, going one step further is recommended:
Managers should also inform their employees about the expiry of the leave that does not expire at the end of the year due to urgent operational or personal reasons. You can download a suggestion for how to formulate this here. In the event of a dispute, employers bear the burden of proving that they have provided the relevant information.
5. Is leave forfeited in the event of illness, such as a Corona infection?
Leave serves to provide time to recover from work. However, sick employees are not resting and recovering as such. Accordingly, Section 9 of the Federal Leave Act (BUrlG) states that employees who get sick while on vacation may make up for this lost leave at a later date. However, to do so they have to report the illness to their employer, and provide a medical certificate.
Employees must always take this lost leave time during the current calendar year, unless otherwise agreed. If they fall ill during their vacation shortly before the end of the year, then they may transfer the lost time off to the following year. According to Section 7 of the Federal Leave Act (BUrlG), the leave has to be taken during the first quarter. Otherwise, it expires. Here, again, the leave only expires if employees are notified in writing that unused leave will expire at the end of the transfer period at the end of March in the following year, as described above. Conversely, this does not apply if the employee is once again unable to take the time off by the end of the carryover period, due to illness or urgent operational reasons, for example.
The Federal Labor Court has even ruled that in the case of a long-term illness where employees are unable to work for several months or even years, the leave entitlement only expires on March 31 of the year after the next. The Federal Labor Court has requested clarification from the European Court of Justice regarding the question of whether a corresponding notice by the employer is also required for this forfeiture.
6. Are there any exceptions regarding paying out leave?
Vacation is intended to serve as a time of rest and recovery, and not to bolster one’s account balance. As such, the Federal Vacation Act does not provide for payment. Nevertheless, Section 7 (4) of the Federal Leave Act stipulates an exception if leave can no longer be granted due to the termination of the employment relationship if, for example, the remaining working days are insufficient for the leave or urgent operational reasons prevent the employee from taking the leave. In this case, Section 11 of the Federal Leave Act specifies how to calculate the payment entitlement: The average salary received by the employee in the 13 weeks preceding the start of the leave is definitive. The gross salary for 13 weeks must be multiplied by the number of remaining vacation days, and the result is divided by the total number of working days during these three weeks. Overtime pay is not included.
7. Are bans on leave permissible?
The company is on the verge of bankruptcy, there is a staff shortage due to a flu epidemic, the company needs all hands on deck to handle the pre-Christmas rush, the annual financial statements are due, or a machine breaks down and can only be repaired by the employee who wants to take time off – all of these reasons may justify a ban on leave pursuant to Section 7 Federal Vacation Act. Otherwise, employees may schedule their vacation time as they see fit. Absences due to illness are not regarded as an urgent operational reason for denying leave requests.
8. Do employees need to be constantly available when on vacation?
It is difficult to relax and unwind if you constantly have to expect a call from your supervisor. The Federal Labor Court shares the same view: Employers may only call their employees if urgent issues leave no other recourse (BAG, decision dated June 20, 2000, Ref: 9 AZR – 405/99).
9. Are employees entitled to unpaid leave and sabbaticals?
The daycare provider has canceled, the grandfather cannot yet take care of the kids on his own again after spending time in hospital, or simply adding a week to the annual leave – can employees take unpaid leave in these cases independently of a paid leave option pursuant to Section 616 of the German Civil Code if they have already used their annual leave? Does the supervisor have to approve this? Unpaid leave is not governed by law. Collective agreements, employment contracts or company agreements may contain corresponding clauses. If not, then employees are not entitled to unpaid leave. So, the answer depends on the specific company. Exceptions may exist given the employer’s duty of care, such as when relatives need care, a child under the age of twelve is ill or the employee’s home has been flooded. In principle, the same applies here: mutually agreeable solutions are always preferable – especially with a view toward the employee’s motivation. Sabbaticals represent a similar situation. Further education is an interesting case given the new German government’s plans to implement part-time work combined with education based on the Austrian model, enabling employees to subsequently obtain a professional qualification or to re-skill. In any case, vacation entitlements may be reduced accordingly for periods of unpaid special leave.
The Federal Leave Act regulates the employees’ minimum leave entitlements. Anything beyond this can be freely agreed between employers and employees or the parties to the collective bargaining agreement, and can include additional vacation days or transferring unused time off beyond the first quarter. Although it is difficult to reconcile the many different needs and demands ranging from school holidays, daycare closing times, preferred seasons and weather conditions with the company’s own operational requirements, such as annual financial statements or seasonal business, the investment is worthwhile. Enabling employees to plan their time off during the year largely the way they want, and without having to remain reachable while on holiday, helps to ensure their motivation over the long term. Last but not least, substitution arrangements have to ensure that the employee’s recovery does not immediately vanish the moment the return to work.