Vacation entitlement in the event of illness maternity leave and co

Vacation entitlement in case of illness, maternity leave etc.What happens to vacation if, for example, an accident at work results in prolonged illness or an application for parental leave or maternity leave is made? Is there a reduction when changing to part-time employment? Answers to these questions are provided in this article.

How is the vacation entitlement regulated?

In Germany, vacation entitlement is regulated by the Federal Vacation Act (BUrlG). The BurlG, § 2 stipulates that blue-collar workers, white-collar workers, apprentices and persons similar to blue-collar workers are entitled to a vacation. Every employee is entitled to at least 20 working days of vacation per year in accordance with the vacation law anchored in the BUrlG, the prerequisite for this is the 5-day week. With a 6-day week results in an entitlement to 24 vacation days.

Vacation entitlement after an accident at work or prolonged illness

Many employees ask themselves in the event of a long-term illness: What will happen to my vacation entitlement, will it expire or will it be compensated?? Because it is not possible to compensate for leave to which you are legally entitled, you will forfeit your leave entitlement if you are ill for an extended period of time.

Until 2009, the BurlG, § 7 Abs. 3 the expiry of the vacation entitlement at the end of the first quarter in the following year. With the so called Schulz-Hoff decision the European Court of Justice (ECJ) forced on 20. January 2009 the revision of the federal regulation. After the ruling, it was initially unclear whether an employee's vacation entitlement could be forfeited at all in the event of prolonged illness. The Federal Labor Court (BGA) has ruled ( AZ 9, AZR 623/10 ) from 18.9.In 2012, the statutory vacation entitlement in the event of permanent illness was newly regulated. Accordingly, the entitlement does not expire until 15 months after the end of the year in question.

For example, someone who becomes ill or suffers an accident at work in the winter of 2018 may lose their vacation entitlement from 2018 due to the extended transfer period to be claimed by spring 2020.

Important note! A transfer of the legally guaranteed minimum leave is only possible in the case of a long-term illness. Any vacation entitlement in excess of this and regulated in the employment or collective agreement is forfeited in accordance with the individual agreement with the employer. If you are guided by the statutory regulations, the extended carryover period also applies here. Even in the case of a vacation entitlement regulated by law, it does not matter whether the illness was triggered by an accident at work or other causes.

What becomes of the entitlement to vacation during parental leave?

Employees are entitled to at least Parental leave full entitlement to vacation, because their employment relationship has not ended but is merely suspended. Leave not taken before the start of parental leave is retained, even over several years.

During parental leave, the vacation entitlement may therefore be carried over in full to the following year become. If a birth occurs again during the parental leave, the time off is extended and further leave is accrued. However, vacation already taken may be forfeited in the year following parental leave.

Reduction of vacation entitlement during parental leave

As an employer, you may reduce the employee's vacation entitlement during parental leave. Basis of a possible reduction is the Federal Parental Allowance and Parental Leave Act (BEEG). According to BEEG, § 17 the vacation entitlement per calendar month may by one twelfth be reduced. The following is an example of a lawful reduction:

An employee has one Entitlement of at least 24 vacation days and goes on parental leave for three months.

The reduction 24 days / 12 months x 3 months reduces vacation entitlement by 6 days.

According to a decision of the BAG ( AZ 9, AZR 197/10 ) only full calendar months count in the case of a reduction. If parental leave begins or ends in the example shown above in the middle of each month, the two halves of the month do not count. Accordingly, the reduction must be made as follows:

24 days / 12 months x 2 months = 4 vacation days.

At BurlG, § 5 also stipulates that half vacation days are to be rounded up. In the first reduction example, there are therefore 18 days remaining and in the following calculation 20 days.

When is the reduction in parental leave permissible?

A reduction of the vacation entitlement is only possible during parental leave if the employee during this time is no further activity perpetrated. If, on the other hand, your employee continues to work part-time, you may not reduce the vacation entitlement. Even in the case of minor part-time employment, the employee enjoys additional vacation entitlement, however, the days actually worked count here.

– In the case of a 6-day week thus accrues Entitlement to 24 vacation days.
– In the case of part-time work with two days per week 2/6 x 24 remain the same 8 vacation days.
– In the case of a 5-day week thus accrues Entitlement to 20 vacation days.
– In the case of part-time employment with two and a half days per week 2.5/5 x 20 remain the same 10 vacation days.

A rounding off of the vacation days is possible according to BurlG, § 5 usually not possible. However, it may be that the collective agreement on which the employment relationship is based permits this procedure.

Important note! A reduction of the vacation entitlement can also happen at the end of parental leave. However, it is invalid if the employment relationship is terminated or cancelled beforehand. Once an employment relationship is terminated, the employer must compensate the remaining vacation entitlement.

How is the entitlement to leave during maternity leave regulated??

The Maternity leave releases an employee from the obligation to work because he/she is excused from work. According to the Maternity Protection Act ( MuSchG, § 24 ), the maternity protection period is defined as a period of employment with the usual acquisition of vacation entitlement.

Reduction not allowed

In contrast to parental leave, a reduction of the vacation entitlement during maternity leave is not permitted. The Maternity Protection Act ares women in § 24 that they can use their vacation earned before the maternity protection period after completing you may take in the same year or in the following year.

How is vacation entitlement regulated for part-time employees??

In principle, the right to leave exists in the event of a change in Part-time continue. However, the employer has the right to reduce if the employee is less than 5 days per week is active. Legally, the entitlement is also regulated in the Federal Leave Act. Meanwhile, many labor or collective bargaining agreements grant vacation days in excess of the minimum entitlement.

Part-time on 5 working days per week

Part-time employment 5 days per week does not change the vacation entitlement at all – even if only a few hours are worked per day. A reduction due to fewer working hours is therefore not permitted. Decisive for the vacation are always the working days, regardless of the hours worked.

Part-time less than 5 working days per week

Ame that an employee is entitled to 20 vacation days per year in full-time employment and changes to part-time employment. A change in vacation entitlement occurs as follows:

– With one working day per week, the leave is reduced to 4 vacation days:

20 vacation days * (1 working day / 5 days per week) = 4 vacation days

– Three working days per week accordingly result in an entitlement of 12 vacation days:

20 vacation days * (3 working days / 5 days per week) = 12 vacation days

If no fixed working hours are agreed with a part-time employee, for the calculation of the vacation entitlement a Average number of working days used per 5-day week.

Bottom line:

In the various situations, a reduction of vacation can be quite reasonable. In principle, however, each case must be considered individually and you must inform yourself intensively about the legal basis in order to avoid possible legal disputes. In addition, it is recommended, especially in the case of vacation entitlement for part-time employees, to make the granted vacation days the same for all employees on the basis of actual working days. This prevents possible discrepancies in the workforce.

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