Vacation entitlement in the event of illness

Is there a vacation entitlement in case of illness?Before an illness employees are not immune also shortly before or even in the middle of the vacation. Nevertheless, you do not have to worry about forfeited vacation days for the time being.

11.06.2021 – 5 min reading time

To the point

As a rule, their vacation entitlement can still be claimed in the event of illness up to 15 months after the end of the vacation year.

So-called vacation compensation is possible if you were unable to take all of your vacation before the end of your employment relationship.

You can take sick leave while on vacation so that your missed vacation days are not lost.

Who is entitled to vacation?

Paid vacation is a legal entitlement for all employees in Germany. How many days this actually is, is precisely regulated in the Federal Leave Act (BUrlG). Currently, every employer must grant at least 20 days (in the case of a five-day week) or 24 days (in the case of a six-day week). However, depending on the labor or collective bargaining agreement, it may be more. Severely disabled employees with a five-day week, meanwhile, have five days more annual leave.

Vacation entitlement in the event of illness

Do I have vacation entitlement in the event of a prolonged illness?

In principle, the vacation entitlement – even in the case of a longer illness – is not to be shaken. This results not least from the case law of the Federal Labor Court (BAG), which has ruled that the performance of work has no influence on vacation entitlement. This remains accordingly likewise, if an employee is absent due to illness for a longer time.

When does vacation expire in case of illness?

According to the case law of the Federal Labor Court (BAG), a vacation claim can still be asserted up to 15 months after the end of the vacation year in the case of long-term illness. A final forfeiture of vacation days is therefore only to be expected in the case of several years of sick leave, or on the 31st day of sick leave. March of the calendar year after next (BAG, Az.: 9 AZR 353/10). This period is called the carryover period. Good to know: Collective agreements may also provide for a longer carryover period.

In 2009, the European Court of Justice (ECJ) abandoned its "old" case law and ruled that there is a right to paid annual leave even in the case of long-term illness. The plea states that under European law there is an entitlement to four weeks' minimum leave. The but would not be implemented if employees on long-term sick leave were to lose their leave entitlement under national regulations (Az.: C-350/06).

However, with another ruling from 2011, the ECJ allowed EU countries to limit the transfer of vacation entitlements in time. However, such a time limit must clearly exceed the duration of the reference period to which it is linked, according to the Luxembourg judges (Az.: C-214/10). Following on from this, the Federal Labor Court (BAG) has set the transfer period for German employees at 15 months after the end of the vacation year.

When does vacation entitlement under the collective agreement lapse in the event of illness??

Whether or not additional leave under the collective bargaining agreement is maintained in the event of a prolonged illness beyond the statutory minimum leave depends on the collective bargaining agreement in question. In principle, the regulations laid down in the German Federal Leave Act (BUrlG) apply. However, if the collective bargaining agreement contains separate provisions regarding the transfer of vacation and vacation pay, there may be deviations here.

78 weeks sick: What now?

Even after such a long period of absence, you do not have to fear directly for your vacation days, because: Vacation entitlements accrue even if the employment relationship is "dormant" for a while. Your entitlement to sick pay expires after 78 weeks. However, since the usual expiration period for your annual leave always begins at the end of the respective year, you still have time to take your vacation days after 78 weeks, depending on the start of your illness. If you leave your job directly after your illness, you may also be entitled to compensation for vacation.

Vacation entitlement in the event of illness

Labor law protection

Even those who do a good job can get into disputes with their employer. Don't worry: With employment legal protection, you can stay relaxed in the event of legal conflicts surrounding your employment relationship.

Can I have my vacation entitlement paid out if I am sick for a long time?

Although the German Federal Leave Act (BUrlG) states that you can have your leave paid out in certain cases, it is not quite as simple as that. There are relatively narrow provisions for payment of your vacation entitlement. Specifically, a so-called vacation pay becomes possible namely only if an employment relationship ends soon and at the same time there is still an entitlement to residual vacation that can no longer be taken in the short term. This can occur on the one hand in the case of a termination agreement or a termination without notice, and on the other hand in the case of an ordinary termination. The latter scenario arises if your boss is dependent on your services until the last day and therefore agrees with you to pay out your remaining leave. So he can continue to count on you until the official end of your employment.

Similarly, if you are ill for a long period of time and then leave your job directly without being able to take your remaining leave, you are entitled to vacation pay. However, this only applies to periods for which the carryover period of 15 months after the end of the leave year has not yet expired.

Do you get vacation pay if you receive sick pay??

In principle, employees are entitled to vacation pay even if he or she has been absent for a longer period of time. An exception to this rule occurs when there is an explicit contractual agreement stating that the receipt of vacation pay is directly linked to the start of vacation.

What if I get sick on vacation?

Even if many employees in Germany are not aware of it: vacation days on which you are sick are not necessarily lost. On the contrary: with an appropriate medical certificate proving your inability to work, the missed vacation days may not be counted towards your annual leave. After all, your days off are supposed to be for health and relaxation, not recovery.

What happens if you fall ill before taking your vacation?

If you fall ill shortly before a planned vacation, you don't necessarily have to bite the bullet and travel with a cold and fever. Rather, in this case you have the right to reschedule your vacation in consultation with your employer. So, the days of leave that you are now de facto sick do not come off your annual leave.

Meanwhile, labor law ambiguities arise again and again in the question of whether or not an employee may go on vacation directly after an illness has been overcome. Employers often argue here that an employee must return to the office after recovery for at least one day before the start of the vacation. In fact, however, such regulations have no legal basis. On the contrary, leave that has already been approved may only be refused in exceptional cases, for example if urgent operational reasons are put forward by the employer.

Can I go on vacation despite sick leave?

Whether you go on vacation despite sick leave is generally at your own discretion. An exception arises, however, if the planned trip prevents your recovery. If you go on an adventure vacation with a severe case of the flu or ski with a broken arm, this may well be grounds for a warning – or in the case of a repetition even for termination without notice. When exactly a vacation stands in the way of your recovery and represents a breach of contractual obligations can only be decided on a case-by-case basis.

Again, it is clear that anyone who fakes an illness in order to go on vacation is not only committing breach of contract, but is committing a criminal offense. In this case it is a case of fraud.

Do I have a right to vacation during reintegration??

During reintegration after an illness, you are still considered unfit for work. Therefore your employment relationship is suspended. This also means that the vacation entitlement cannot be fulfilled during this time. However, you continue to accumulate your vacation entitlements and can claim the vacation when the reintegration is successfully completed. Only vacation days for which the 15-month carryover period has expired can no longer be taken.

The gradual reintegration into the job itself is often referred to as the Hamburg model. This is regulated in § 74 SGB V and § 28 SGB IX and is considered a measure that is recommended and planned for the time after discharge after a long absence from work and subsequent rehabilitation or hospital treatment. A note about this can usually be found in your discharge report. In this way, you can gently and gradually find your way back into working life. This reintegration program is offered in Germany to members of the statutory health insurance fund (GKV). For those insured under private health insurance (PKV), which also includes civil servants, there is a similar procedure.

What happens to my vacation in the event of a termination agreement?

Anyone who signs a termination agreement and thus leaves a job is usually entitled to vacation compensation. In concrete terms, this means your employer will pay you for the vacation days you were unable to take. This regulation is laid down in the Federal Holiday Act (BUrlG). The situation is different if you are still in the job long enough to take your remaining leave. In this case, the granting of vacation takes precedence over your entitlement to compensation. In termination agreements, therefore, the irrevocable release of the employee is often agreed upon, with which open vacation claims are fulfilled. Your vacation will only be paid out if you really do not have time to take it.

Can the health insurance company offset vacation pay against sick pay?

No. Although there was some confusion about this in the past, and sometimes divergent legal opinions competed with each other, this question has now been clearly clarified by a ruling of the German Federal Social Court (Bundessozialgericht). In 2006, this court ruled that a vacation allowance does not lead to a temporary interruption in the receipt of sick pay, nor does it lead to an offset against sick pay (Az.: B 1 KR 26/05 R).

Is vacation compensation tax-free in case of illness?

A vacation allowance is considered income subject to social security contributions and is taxed accordingly. Means: both wage tax and church tax as well as health, pension and nursing care insurance contributions are deducted.

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