Vacation and illnessJune 2012 – An employee is entitled to continued payment of remuneration if he is prevented from performing his work due to incapacity to work as a result of illness without being at fault (Section 3 EFZG).
If an employee falls ill during the vacation and proves the days of incapacity for work by a medical certificate, he is also entitled to continued payment of remuneration in the event of illness for these days. The employer may not count these proven days of incapacity for work against vacation (§ 9 BUrlG). The inability to work must therefore be proven from the first day of illness by a medical certificate. If the employee cannot take the already approved leave due to illness, the granting of leave is also invalid, since leave and incapacity for work due to illness are mutually exclusive. The leave must then be applied for again after the end of the incapacity for work.
Illness during a vacation abroad
In connection with the obligation to continue to pay remuneration, questions arise again and again when an employee falls ill during a leave abroad. In this case, the sick employee is obliged to notify his employer of the inability to work, its expected duration and also the address at the place of stay in the fastest possible way of transmission. However, the employer must also bear the costs incurred as a result of the notification of incapacity for work (§ 5 Para. 2 sentences 1 and 2 EFZG).
In addition, if the employee is a member of a statutory health insurance fund, he must also immediately notify his health insurance fund of his incapacity to work. If the incapacity for work lasts longer than indicated, the employee is obliged to notify both the employer and the statutory health insurance fund of the expected duration of the incapacity for work. However, the statutory health insurance funds may stipulate that the sick employee may also fulfill these notification and reporting obligations vis-à-vis a foreign social insurance carrier (Section 5 para. 2 sentence 3 to 5 EFZG). If bilateral social security agreements exist with the vacation country, the obligation to provide proof to the employer and health insurance company is simplified. In this case, the person who is ill while on vacation must submit his certificate of incapacity for work to the social insurance agency responsible for his place of stay, which will notify the German health insurance fund. The sickness fund will then also inform the employer.
Certificates of incapacity for work from abroad
In the case of certificates of incapacity for work from countries of the European Union, the employer is generally bound by their probative value. The medical certificate must clearly indicate that the doctor has distinguished between a mere illness and an illness associated with incapacity for work. Only then does it have the same probative value as a certificate of incapacity for work ied in Germany (Joint Circular of the Central Associations of the Health Insurance Funds dated 25 September 2006).6.1998). Attestation of incapacity for work as a result of the illness must be ensured in particular in the case of medical certificates from countries outside the European Union.
Practical tip: If there are serious doubts about the employee's incapacity for work during the leave abroad, the employer can request a medical certificate of incapacity for work from the foreign social insurance agency via the respective health insurance fund.
If the employee who is incapacitated for work returns to Germany, he or she is obliged to notify the employer and the health insurance fund of his or her return without delay (Section 5 Para. 2 sentence 7 EFZG). However, the employee who is ill while on vacation may not extend the originally agreed vacation period by the certified days of illness at his own discretion. The leave to be granted as a result of incapacity for work must always be applied for again and approved by the employer.
Illness during unpaid leave
In a suspended employment relationship, there is no entitlement to continued payment of remuneration in the event of illness. This also includes unpaid leave. In this case, the entitlement to continued payment of remuneration exists only for the periods before and after the unpaid leave. However, if an employee wishes to extend his or her paid recuperative leave with an unpaid leave, the unpaid leave agreement may specify that the unpaid leave will end or not begin if incapacity for work due to illness occurs. If the employee actually falls ill during this period, the unpaid leave days not yet taken shall be forfeited. The employee is then also entitled to continued payment of remuneration during this time.
Self-inflicted illness during vacation
If an illness during vacation and the associated inability to work is self-inflicted due to gross negligence or intentional acts, the employee loses his entitlement to continued payment of remuneration in the event of illness (§ 3 EFZG), but the entitlement to non-credit of the proven days of inability to work to the annual vacation still exists (§ 9 BUrlG), so that the vacation must be granted in arrears in this case as well.
Examples of self-inflicted incapacity for work:
– Injuries in a traffic accident as a result of gross violation of traffic regulations – Injuries as a result of considerable drunkenness – Injuries while practicing a particularly dangerous sport – Injuries in a self-provoked brawl
However, if the employee does not present a certificate in case of self-inflicted incapacity for work, his/her leave shall continue to run and the days of leave lost due to incapacity for work shall not be granted subsequently. In return, the employee retains the right to compensation for the paid vacation. .
Illness of a child during vacation
If during the leave not the employee himself falls ill, but a child of the employee, the granted leave remains in force and does not lead to a claim for subsequent granting of the leave days used for the care of the child. For sick days not to be credited to vacation days, the proven inability to work as a result of illness on the part of the employee himself/herself is required. Therefore, the provision under § 9 BUrlG cannot be applied. If the employee is released from work during his/her vacation due to the illness of the child (§ 45 para. 3, sentence 1 SGB V), he is entitled to the child care sick pay granted by the health insurance fund in the amount of 70% of his net pay, but at the same time loses the entitlement to payment of the vacation pay. Leave from work to care for a sick child is expressly granted with simultaneous elimination of the employer's obligation to pay remuneration (ArbG Berlin 17.6.2010, 2 Ca 1648/10).
Practical tip: If an employee cares for a sick child during vacation and is not released from work for this purpose in accordance with Section 45 of the German Social Code, Book V, he or she continues to receive full vacation pay.
Subsequent granting of vacation lost due to illness
Even in the case of subsequent granting of leave lost due to illness, the leave must be taken in the current calendar year. However, a carryover to the next calendar year is justified if there are urgent operational reasons or the employee's personal situation makes this necessary. The leave must then be granted and taken in the first three months of the following year (§ 7 para. 3 BUrlG).
Exceptions and special features must be observed in the case of continuous incapacity for work. Vacation entitlements of employees who have been unable to work for many years expire at the latest 18 months after the end of the vacation year if they could not be taken by then (LArbG Hamm 12.1.2012, 16 Sa 1352/11). They are not to be compensated even in the event of a later termination of the employment relationship.
However, it is permissible for a collective agreement to limit the accrual of entitlements to paid annual leave from past periods to a carryover period of 15 months. However, the carryover period must clearly exceed the duration of the reference period for which the leave is granted – which is the calendar year (ECJ 22.11.2011, C-214/10 and LArbG Hamm 22.3.2012, 16 Sa 1176/09).