Vacation entitlement minimum vacation vacation law 2022 finanztip

Britta Beate Schon is responsible for all legal topics at Finanztip. A lawyer with a doctorate in law, she has worked as head of the legal department at financial service providers such as Telis Finanz AG and Interhyp. Previously, she taught and researched in Japan as a DAAD Junior Professor of German and European Law. She completed her studies in Munster, Geneva, Regensburg and Leipzig. You can reach the author at [email protected]

– With a five-day week, employees are entitled to at least 20 days of paid vacation. The usual number of vacation days is 30. – Employers are generally not allowed to pay out vacation days, even for mini-jobs. – Vacation days can be taken on 31. December; most employers allow remaining vacation days to be carried over to the following year – until 31. March. You should request leave in good time. Coordinate with your colleagues. For the application you can use our sample letter.

– If you are unable to take some vacation days in the calendar year, have the remaining vacation carried over to the new year in good time. – If you have forfeited vacation days in the last three years, you have the chance to have them credited to your vacation account again.

In this guidebook

Employees have vacation so that they can recover and stay healthy. Unlike for the self-employed or freelancers, vacation for employees means a
Time off without financial loss. The employer continues to pay the salary during the leave. Each employee in Germany had in 2020 on average 28 days Vacation.

How many days of vacation are you entitled to?

The statutory vacation entitlement comprises 24 paid working days per year. However, the Federal Vacation Act is based on a six-day week (§ 3 BUrlG), which is rather unusual today.

20 days minimum vacation – If you as an employee work only five days a week as usual, you are entitled to at least 20 paid vacation days per year. Severely disabled employees have an additional vacation of five days (§ 208 para. 1 SGB IX), i.e. a total of 25 days for a full-time job.

30 vacation days are usual – In many collective bargaining agreements or employment contracts, employers grant 30 days of leave.

Special leave – Some employees are entitled to special leave for special occasions, such as their own wedding or the birth of a child. However, these additional vacation days are only available if this is stated in the collective bargaining agreement or employment contract so. Sometimes special leave is also regulated in a works agreement.

Reduction of vacation entitlement

In special situations, your employer may reduce your vacation entitlement.

Parental leave – Vacation entitlements also arise during parental leave. However, the employer may reduce it – for each full month of parental leave by one-twelfth of the annual leave (§ 17 para. 1 BEEG). This regulation does not violate European law (BAG, judgment of 19. March 2019, Az. 9 AZR 362/18). If the employer wants to reduce the hours, he must inform the employee, but not necessarily at the start of parental leave.

Sabbatical year – Who takes a longer unpaid special leave or a so-called sabbatical, whose employment relationship is suspended. Therefore, the employee also does not acquire an entitlement to minimum leave during the period in which he does not work (BAG, judgment of 19. March 2019, Az. 9 AZR 315/17).

Short-time work – It is disputed whether your employer may reduce your vacation entitlement accordingly for the duration of short-time work. According to a ruling of the Dusseldorf Regional Labor Court short-time workers are to be treated like employees who temporarily work part-time; then the vacation leave is also reduced proportionately (ruling of 12. March 2021, Az. 6 Sa 824/20). Ultimately, only a Ruling of the Federal Labor Court provide clarity. Until then You should write to your boss that you do not agree with the reduction.

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How much vacation do you have in a mini-job or part-time??

A part-time employee can have the same number of vacation days as a full-time employee. However, for this he must work every working day in the week. If he works fewer days, the vacation is reduced accordingly. It is therefore not the hours that someone works part-time that are important, but the days. Someone who works 20 hours a week therefore does not automatically have half the number of vacation days as a full-time employee.

Example 1: A clerk works 20 hours three days a week. Full-time employees have 30 days of vacation with a five-day week. The part-time colleague is entitled to 18 paid vacation days (30 days × 3 days ÷ 5 = 18 days).

Example 2: A clerk works 20 hours on five days a week. He or she has the same annual vacation entitlement as a full-time employee, namely 30 days.

The vacation entitlement of part-time employees is mathematically only worth fewer working hours. The vacation law does not recognize half vacation days. Also no vacation hours. Fractions of vacation days that add up to at least half a day are rounded up to full vacation days (Sec. 5 para. 2 BUrlG).

Mini-jobbers can also apply for vacation. For them, it is also decisive on how many days they work in the week. With the vacation calculator of the Minijobzentrale you can calculate your vacation entitlement.

Is the
Number of working days in the week always different, the vacation is calculated on the year. According to the Federal Labor Court, employees must work 260 working days in a year with a five-day week, 312 working days with a six-day week.

The formula for the minimum vacation for a five-day week is: 20 vacation days × actual working days ÷ 260 annual working days.

Example: A mini-jobber has this year until 30 days vacation. June already worked 18 days. Full-time employees work five days a week: 20 vacation days × 18 working days ÷ 260 = 1.38 vacation days, rounded 1 vacation day.

In the first half of the year, the mini-jobber has earned one vacation day. The employer must also pay the vacation days: As a rule, the amount of the vacation pay is based on the average salary in the last 13 weeks before the start of the leave.

From when are you entitled to vacation?

The
full vacation entitlement arises for the first time after six months since the beginning of the employment relationship (§ 4 BUrlG). This often results in employers imposing a six-month vacation ban during the probationary period or employees mistakenly aming that they are not allowed to take any vacation at first.

This has the undesirable side effect that new employees accumulate vacation claims and these then accumulate. Therefore, it is now common for employees to be able to apply for vacation even during the probationary period. However, the employer does not have to approve it. New colleagues, however, already acquire a vacation entitlement -. In fact, one twelfth of the annual vacation for each month (§ 5 BUrlG).

How to apply for vacation?

Most employers offer ready-made leave request forms to fill out or use special human resources management programs that allow you to request and manage your leave. If you need to write your vacation request yourself, you can use our sample vacation request form.

Sample vacation request letter

Here you can see our Sample letter download the sample letter for the vacation request:

If the waiting period of six months is fulfilled, your employer must also approve your vacation request in principle. Under no circumstances are you allowed to take leave yourself, for example because the boss leaves your application lying around. If you arbitrarily take a vacation that has not been approved by the employer, you risk termination without notice (BAG, judgment of 22. January 1998, Az. 2 ABR 19/97).

Vacation allowance – In rare cases, the employer may impose a vacation ban. This is only possible due to urgent operational reasons (§ 7 para. 1 BurlG). Examples are waves of illness or company vacations, but also a special order situation.

Who gets vacation pay?

Who has vacation, gets simplified said his salary further. This is also called vacation pay. With Vacation pay means something else – the employer pays for it additionally to the normal wage an amount, which you can spend for example for a vacation. This is a special benefit of the employer, comparable with the Christmas bonus. Often it is included in the collective agreement or employment contract, sometimes the employer pays vacation pay based on a company agreement. Employees do not have a right to it.

Have vacation paid out

You must take the vacation days and are generally not allowed to have them paid out – not even as a mini-jobber (§ 7 para. 4 BUrlG). However, if you can no longer take all or part of your vacation, for example because you have given notice yourself and are still training a successor must, so the employer must pay you the vacation not taken. This is also called Vacation compensation.

According to the Federal Vacation Act, the average earnings per working day that you earned as an employee in the last 13 weeks before you left is decisive (§ 11 BUrlG).

Calculation formula for a five-day week: total earnings for the last 13 weeks ÷ 65 days = wage entitlement per day in euros. This amount in euros is then multiplied by the number of days of leave.

Example: You earn 3.000 euros gross per month, i.e. in the last three months 9.000 euros gross. At the end of the employment relationship, you still have twelve vacation days. With a five-day week, the calculation is as follows: 9.000 euros ÷ 65 days = 138.46 euros per working day. For the
twelve vacation days you will receive 1.661,54 Euro.

If you actually still had the opportunity to take your remaining vacation before your last day of employment, then the employer does not have to pay anything.

Can you carry over remaining leave to the following year?

You can increase your vacation entitlement according to the law over the 31. December, but actually only if there were urgent operational or personal reasons for you not being able to take the leave (§ 7 Para. 3 sentence 2 BUrlG). Until 31. You have until March of the following year to use up the vacation days carried over from the previous year. Otherwise they expire (BAG, judgment of 7. December 1993, 9 AZR 683/92).

Collective bargaining agreements and employment contracts often contain provisions that put employees in a better position when it comes to transferring vacation entitlements. A typical clause in an employment contract reads like this:

"In justified exceptional cases, it is possible for the employee to take the leave with the prior consent of the employer at the beginning of the following year, but no later than 31. March takes."

In practice, many employers do not pay attention to whether a justified exceptional case really exists; they agree to employees taking residual vacation days with them into the new year.

Carryover to the following year due to permanent illness

Even those who have been sick for several months or for the entire year are entitled to leave. The vacation days are used up because of personal impediment reasons in principle up to 31. March carried over to the following year.

But what happens if you longer than until the end of March sick leave? Also then lose You may not assert your entitlement to paid annual leave not and can then take the vacation days when you are healthy again and can come to work (ECJ, judgment of 20. January 2009, Az. C-350/06 and C-520/06).

Despite this case law, however, employees can claim vacation not unlimited accumulate. At the latest 15 months after the end of the working year in which the vacation entitlement was acquired, that's it (BAG, judgment dated 7. August 2012, Az. 9 AZR 353/10). This is the so-called 15-month case law of the Federal Labor Court. An employee has been sick since January 2019. Takes on 1. April 2020 returns to work. April 2020 his work again. For 2019 he has the full vacation entitlement. These days expire, like the 2020 vacation, on 31 December 2009. March 2021.

Transfer of vacation days due to maternity leave

The same applies to an employee who can no longer take her leave during the year because she has become pregnant and is no longer allowed to work due to a ban on employment under the Maternity Protection Act (BAG, judgment of 9. August 2016, Az. 9 AZR 575/15).

The vacation then does not expire at the end of the year and also not at the 31st day of the year. March of the following year. Rather, after the maternity protection periods have expired, the employee can claim the remaining leave in the current or in the next leave year (§ 24 sentence 2 MuSchG). So make sure that your boss does not simply count the vacation days towards the time of the employment ban.

Transfer of vacation days due to parental leave

If an employee takes parental leave, the vacation not yet taken does not expire. After returning from parental leave, the employee is entitled to the old vacation days in addition (§ 17 para. 2 BEEG).

If you did not take all of your leave before parental leave, you should make a note of how many days of leave you still had. After returning from parental leave, you should inform your employer that you are still entitled to remaining vacation days, even if they are no longer visible in your vacation account.

Expiration clause in employment contract

Many employment contracts have a so-called expiration or exclusion clause. After that, claims that you do not file within a certain period, usually of three months, claim. This also applies to vacation entitlement. Therefore, you should talk to your employer or the human resources department about your accumulated vacation entitlement and register it early if you are able to return to work after a long illness or if you are still entitled to vacation days after a dismissal. This is because a collectively agreed preclusive period also applies to claims for vacation compensation (BAG, ruling dated 27. October 2020, Az. 9 AZR 531/19).

When do vacation days expire??

One in three employees allows their vacation entitlements to lapse, according to a DGB study. This benefits employers financially. Is not actually thought so. Permanently healthy employees are those who also take time for recreation in addition to weekends. Therefore you should also take your vacation.

Important: If you are still entitled to remaining vacation days at the end of the year, then expire it no longer automatically (ECJ, judgment of 6. November 2018, Az. C-619/16 and C-684/16; BAG, judgment dated 19. February 2019, Az. 9 AZR 541/15). Because employers have a duty of care. Before the end of the year, they should ask employees to use the vacation days and point out that days not taken will be forfeited. If the employer complies with this Duty to cooperate If the employee does not comply with the obligation to cooperate, the employee's vacation entitlement remains in force according to case law, i.e. it does not expire.

Did you get in the last three years If you have allowed vacation days to lapse and your employer has not informed you of this, you can try to have the days added back to your vacation account to be credited. Because in principle, claims expire after three years. Leave entitlement could thus not grow endlessly, even if employers remain completely inactive.

Clarified is the question of Limitation not. The Federal Labor Court has referred the ie to the European Court of Justice (ruling of 29. September 2020, Az. 9 AZR 266/20). It remains to be seen how the decides.

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