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Relaxed on vacation - what do I have to consider in terms of employment law?
Photo: Massimo Colombo/Getty Images
The average German has 28 vacation days a year.
But many are unsure when they can take these days off, whether they can be paid out and what happens if they are sick during the period.
Together with André Niedostadek, Professor of Economic, Labor and Social Law at the Harz University, DER SPIEGEL explains the most important myths about vacations.
1. "Your vacation will be forfeited if you don't take it by the end of the year"
One of the classic holiday misconceptions.
When you first look at the Federal Holidays Act, things seem pretty clear: Section 7, paragraph 3 states: »The holidays must be granted and taken in the current calendar year«.
However, the following sentence already puts it into perspective: "A transfer of vacation time to the next calendar year is only permissible if urgent operational reasons or reasons relating to the employee's person justify it".
So there are exceptions to the principle.
For example, the »operational reasons«.
Translated, they mean that all hell is breaking loose at work and that you are under no circumstances dispensable.
If one of these exceptions applies, your boss can refuse you vacation.
However, it must be ensured
that the open leave is taken within the first three months of the following year at the latest.
So far, so plausible.
However, a decision by the Federal Labor Court (BAG) from February 2019 (9 AZR 541/15) provides another exception to the principle.
“Here, the BAG decided that vacation cannot expire so easily if the employer has not informed its employees beforehand that their vacation is about to expire.
The notice can be sent by e-mail or letter and must be specific and individual.
So it must be clear that there is still vacation that can be taken and that there is a risk that it will expire," says Niedostadek.
At the same time, he refers to a current case, according to which this should not apply to civil servants.
The fact that the holiday is legally explosive is also underlined by ongoing proceedings before the European Court of Justice.
There it is about the statute of limitations on holiday entitlements if companies do not or not completely give notice of this.
Holiday entitlements expire after three years.
But when does the deadline start?
»According to the Advocate General of the European Court of Justice, only when employees have been informed.
Without reference to the holiday entitlement, there is no expiry and possibly no simple statute of limitations either," says Niedostadek.
A decision that can have serious repercussions can therefore be expected at European level in the near future.
Assuming you change employers within a year, that doesn't mean you're entitled to twice the holiday (although that's not a bad idea).
In practice, your old employer will give you a certificate of the remaining vacation time, which you can then take with you to your new job and apply for it there.
If the employer had to go on short-time work, this also affects annual leave.
Here, the Federal Labor Court decided (file number: 9 AZR 225/11) that the employer is entitled to reduce the vacation days of employees for the time when they are not working in the case of "zero short-time work".
2. »Your holiday, you can also have it paid out«
Vacation should be relaxation.
And this relaxation is also paid for.
"So to a certain extent, switching off from work is also a duty of employees," says Niedostadek.
How and where you get off the job is up to you.
The fact that vacation days cannot be paid out is not always the case:
For example, if you can no longer take your vacation or only part of it because your employment ends.
It can be tricky to calculate how much you will be paid out – also depending on allowances and commissions or if you work part-time.
The second exception is the death of the employee.
For example, if the deceased had remaining vacation time, the heirs can have this paid out by the last employer of the deceased, according to the BAG in a decision from 2019.
According to a recent decision by the Berlin Administrative Court, the entitlement to compensation for the actual holiday for a 5-day week is limited to 20 days of holiday under Union law.
Basically, the legal minimum holiday is 24 days for a six-day week, 20 days for a five-day week and 16 days for a four-day week per calendar year.
The employer has several options for extending the statutory vacation entitlement, for example through individual agreements.
A collective agreement can also contain further provisions.
3. "Your entire annual vacation, you can't take it in the summer"
From a purely legal point of view, there is nothing against it.
You might think that the legislator would say: "Hey, plan your vacation wisely over the year, then you might relax better," but he doesn't say that.
When changing jobs, however, special features also apply here: If you still want to take all of your annual leave from your old employer, this is only possible if you leave in the second half of the year, but not in the first half of the year.
Then the vacation days are calculated pro rata – depending on how many months you are still employed.
"If you leave in the second half of the year, employment contracts can also contain agreements on the proportionate vacation entitlement, at least for vacation that exceeds the statutory minimum," says Niedostadek.
“It is always important when you go on vacation to make arrangements with your supervisor and, if necessary, your colleagues at an early stage.
If the coordination of vacation is well managed by the employer, this can eliminate a great deal of potential for conflict," says Niedostadek.
For example during the holiday season, which is usually reserved for colleagues with children.
Incidentally, your request for leave does not have to be granted by your boss as a matter of course: »You are entitled to it, but you cannot simply determine the time of your leave without consultation.
However, your holiday wishes must be taken into account,” says Niedostadek.
4. »You were sick on vacation?
Bad luck."
Here the law is kind.
"If you are sick, your vacation days do not expire, but you must have officially reported sick to your employer," says Niedostadek.
What is not possible: If you fall ill while on vacation, leave the vacation days behind and return to work later without consulting your boss – along the lines of: I am entitled to two weeks vacation!
Here you have to be patient a bit.
However, if you are unable to work for a longer period of time, your statutory vacation can also be forfeited completely;
here the deadline is 15 months – beginning with the end of the relevant vacation year.
What is exciting here, due to the current situation, is the question: How does it affect my vacation if I have to be in quarantine during my vacation, but I'm actually not sick?
»If you cannot produce a certificate of incapacity for work despite the official quarantine, then vacation days will be taken into account.
However, a decision by the highest court is still pending," says Niedostadek.
The Cologne Regional Labor Court ruled on this in December 2021 (file number: 2 Sa 488/21).
The tenor: Just because someone is in quarantine does not mean that they are automatically unable to work, the Schleswig-Holstein State Labor Court (file number: 1 Sa 208/21) saw it similarly.
5. »I'm your boss, of course I can take you home if the tree is burning here«
When a tree burns and when not, everyone has different ideas.
Basically, however, the law says: Vacation means vacation - and your superior cannot simply order you back to the office.
»There may be very blatant cases where the existence of a company is at stake.
There will certainly be a balance between the entitlement to holiday and the employer's interest in the continued existence of the company.
However, these cases of balancing interests are extremely rare,” says Niedostadek.
This also applies to management positions.
"If a person can't even go on vacation in peace without the shop getting into trouble, then maybe the basic work structure should be questioned," says Niedostadek.
Because there is no question: Holidays are simply part of life.