Holiday loss in quarantine?

case for the ECJ

Created: 2022-08-16Updated: 2022-08-16, 4:50 p.m

People wait in front of a Covid-19 test center on El Arenal beach in Mallorca.

© Clara Margais/dpa/symbol picture

Employees are repeatedly hit with the bad news: corona quarantine or isolation during vacation.

Is the holiday lost - or is it credited?

Now it is up to the ECJ.

Erfurt - unlucky?

Since the beginning of the corona pandemic, employees have been asking this question again and again when they have to be in quarantine or isolation during their vacation, without symptoms and therefore without a sick note.

But are the vacation days lost, or do they have to be credited by the employer?

The answer to the disputed question now lies with the European Court of Justice (ECJ).

The Federal Labor Court (BAG) in Erfurt presented the problem to the judges in Luxembourg - and with it the case of a locksmith from North Rhine-Westphalia.

The problem

So far, there has been no legal regulation in Germany in the event that employees who are in contact with a person infected with corona have to be in quarantine at home or in isolation during their vacation because they have tested positive but have no symptoms of illness and no medical certificate.

The Federal Holidays Act only regulates what happens if someone is on sick leave while on holiday: “If an employee falls ill while on holiday, the days of incapacity for work documented by a medical certificate are not counted towards the annual holiday”, it says in paragraph 9. Holiday is therefore credited - it can be made up for.

Labor lawyers disagree

Labor lawyers in Germany are arguing about whether corona quarantine or isolation without symptoms should still be treated like sick leave.

According to experts, there are very different, sometimes contradictory, opinions on this.

In North Rhine-Westphalia, for example, by courts in Cologne and Hamm.

The decision of the Federal Labor Court

The highest German labor judges involved the ECJ judges in Luxembourg (9 AZR 76/22 (A)).

Before making their judgment, they want to have European law aspects clarified first.

It is “decisive” for the BAG whether the European Working Time Directive and a passage in the EU Charter of Fundamental Rights stand in the way of annual leave that has been requested and approved by the employer and overlaps with an officially ordered domestic quarantine and is not credited under national law "because the affected employee was not ill himself," says the BAG decision.

The case

A locksmith from the Hamm region complained.

He had eight days vacation in October 2020.

Because he had contact with a person infected with Covid-19, the municipal authorities ordered him to be quarantined at home.

The man informed his employer about this and asked him to credit him with the eight days of vacation spent in quarantine.

He did not have a corona infection and therefore no medical sick leave.

He insisted on catching up on his vacation - the quarantine had stood in the way of his recovery - just as it would have been the case with an illness.

In short, he couldn't enjoy his vacation.

However, his employer rejected the application of the passage in the Federal Holidays Act.

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judgments of the lower courts

The Hagen labor court dismissed the man's claim.

The Hamm Higher Labor Court upheld her decision.

In his judgment it says: "The ordering of a quarantine is diametrically opposed to a free, self-determined design of the vacation period, regardless of how the individual concerned feels about it personally."

What currently applies

According to the Federal Ministry of Health, quarantine and isolation are not currently regulated nationwide, but in the corona regulations of the federal states.

As a rule, people who are proven to be infected are isolated for five days.

There is a quarantine obligation for returnees from virus variant areas.

According to the Robert Koch Institute, there were an average of around 50,000 new corona infections registered every day in the past week.

In August, an average of almost ten percent of those who tested positive for the corona virus remained symptom-free.

dpa