Bag on the forfeiture of vacation in the event of illness of the company

The BAG dealt with the forfeiture of vacation in the event of illness: Does the 15-month time limit also apply if the employer fails to cooperate?? | ©WellnhoferDesigns/

Whether and under what conditions the entitlement to paid annual leave of an employee who became incapacitated for work in the course of the vacation year lapses 15 months after the end of the vacation year if the incapacity for work has continued uninterruptedly since then? The BAG has appealed to the ECJ on the subject of forfeiture of vacation in the event of illness.

The plaintiff, who is employed by the defendant, has been continuously unable to work since she fell ill during 2017. Of her vacation for 2017, she did not take 14 vacation days. The defendant had not asked the plaintiff to take her leave, nor had it pointed out that leave not requested could expire at the end of the calendar year or carryover period. If the employee is still entitled to the remaining 14 vacation days from the 2017 calendar year?

BAG appeals to the ECJ

The lower courts have dismissed the action. For the purpose of deciding whether the plaintiff's 2017 leave of absence on 31.03.2019 or as the case may be. If the employee has forfeited his leave at a later point in time, the Ninth Senate of the Federal Labor Court (BAG) is concerned with the interpretation of Union law, which is reserved for the Court of Justice of the European Union. He therefore directs a reference for a preliminary ruling to the ECJ (judgment of 07.07.2020 – 9 AZR 401/19).

Vacation must be taken

According to § 7 para. 3 BUrlG vacation must be granted and taken in the current calendar year. Vacation may only be carried over to the first three months of the following calendar year if this is justified by urgent operational reasons or reasons relating to the employee. The BAG has interpreted this provision on various occasions in conformity with Union law.

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