Labor law: can I take unpaid leave?

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Studies can also be a reason for unpaid leave

Photo: Tom Werner / Digital Vision / Getty Images

The corona crisis hit many companies hard financially.

When it comes to austerity measures, creativity is sometimes required: This is one of the reasons why many companies do not want to turn down their employees' desire for unpaid leave.

There can be many reasons for absenteeism free of charge: advanced training in the form of a degree, caring for relatives or simply extending the annual leave stipulated in the contract.

But is that even allowed?

Is there an entitlement for employees?

And what consequences could unpaid leave have?

You can find the most important answers here.

Are employees entitled to unpaid leave?

There is no fundamental right to unpaid leave.

However, such a claim can arise from the respective employment contract.

When am I entitled to unpaid leave?

There are cases in which employees have to be released from their employer.

For example, if the child (under the age of twelve) falls ill and needs care at home.

But also if the employee gets into an emergency situation through no fault of their own (house fire, flooding).

Employees can be exempted from compulsory service for up to ten days if a relative is in need of care.

In such cases, a nursing leave of up to six months can be requested.

Collective agreements also sometimes provide for a right to unpaid leave if there is an important reason.

"Whether this is actually the case must be determined from the employee's point of view. The following are recognized as important reasons: taking up a degree, exercising the electoral office as mayor, looking after children, accompanying the spouse employed abroad," says Daniel Brügger, a lawyer specializing in labor law.

In addition, company agreements and social plans can also contain entitlements to unpaid leave.

However, if there are no grounds for entitlement in the employment contract, unpaid leave can only be mutually agreed between the employee and the employer.

What are the consequences of unpaid leave?

First of all, in the case of unpaid leave, the mutual main performance obligations that were agreed in the employment contract do not apply.

In concrete terms, this means that the employee no longer has to fulfill his duty to work, and the employer no longer has to pay a wage.

It is important that an employee has to take care of his own social security if the unpaid leave lasts longer than a month.

"If, for example, there is two months of unpaid leave, the employee has to take care of health insurance himself for the second month," says Brügger.

According to the lawyer, this is due to the fact that the employment relationship continues, but the employment relationship under social security law only lasts for a maximum of one month, provided that no more wages are paid.

However, some companies offer their employees the opportunity to save free time in order to stay busy all the time.

Disadvantages can also arise with pension insurance, since the pension contributions depend on the remuneration.

What do employers have to consider when granting unpaid leave?

In contrast to employees, employers basically do not have to pay attention to anything.

"It is only important that in the case of an agreed unpaid vacation there is evidence of this agreement. This should generally be in writing," says Brügger.

How long can the unpaid leave last?

There are no fixed limits to the length of unpaid leave.

If employees and employers agree, a two-year break from work can also be agreed.

This usually happens with so-called

.

"The duration of the abstinence is therefore a matter of negotiation," says lawyer Brügger.

Can unpaid leave be terminated early?

In principle, the vacation can only be ended prematurely if the employer and employee mutually agree on it.

As almost always in labor law, there are exceptions here as well: For example, if the agreement contains a unilateral right to terminate.

In the special cases already listed above (e.g. illness of the child, caring for relatives), the employee may return to work prematurely.

The employer cannot unilaterally end the unpaid leave here.

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