Sick days are not vacation days
Falling ill while on vacation is a major annoyance and yet it happens. Given that vacation is intended for general rest and recovery, incapacity for work and vacation are regarded as mutually exclusive. The Federal Leave Act (BUrlG) clearly states that days on which an employee is unable to work are not regarded as vacation days.
Consequently, employers are required to credit employees these vacation days if the employee was unfit for work and can prove this with a medical certificate. Section 9 of the Federal Leave Act (BUrlG) states that these vacation days then become sick days.
Quarantine during the Covid pandemic
The days of having to go into quarantine in Germany to avoid posing a potential infection risk for others now seem like a distant memory.
Being ill or infected was not even a prerequisite. For a while, the mere possibility of being a potential Covid-19 virus carrier was enough.
But what happened if employees were forced to go into quarantine while on vacation? They were not necessarily ill. Yet, this is the prerequisite for having leave credited by the employer.
Locksmith demanded his leave
This happened to a locksmith who was quarantined by the authorities during his vacation at the end of 2020. He wanted his employer to credit him the vacation days he was forced to spend in quarantine. He argued that because of the mandatory quarantine, he was unable to rest and recover to the same extent as on an unrestricted vacation.
The employer took a different view and refused to credit the quarantine days as vacation days.
The Labor Court shared the employer’s opinion. Yet in 2022, the employee won his appeal before the Hamm District Court. The situation was comparable to that of illness and, hence, the court treated the case in accordance with Section 9 of the Federal Leave Act (BurlG).
Federal Labor Court adopts the same position as the Labor Court and the ECJ
However, the Federal Labor Court (BAG) then ruled in favor of the employer. The court stated there was no (further) reason for an analogous application of Section 9 of the Federal Leave Act (BUrlG).
Based on the ruling announced in court, the decision is based on a judgment by the European Court of Justice (ECJ). In mid-December 2023, the judges in Luxembourg ruled that EU law does not require employees who are forced to spend days in quarantine during their vacation to be credited for these days.
In view of this ruling by the ECJ, the decision by the Federal Labor Court was almost to be expected.
However, the legislator had already reacted before the Federal Labor Court ruling at the end of 2022. Section 59 of the Infection Protection Act (IfSG) now stipulates that vacation days must be credited in the event of quarantine during vacation – in the same manner as illness during vacation.
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Summary of the key facts:
- If employees become unfit for work while on vacation, employers are required to credit the sick days as vacation days: Sick days are not vacation days.
- Whether days of Covid quarantine while on vacation should also be handled the same way had not yet been clearly decided by the highest instance of Germany’s labor courts. The Federal Labor Court’s ruling reflected the stance of the ECJ: No crediting of vacation days if an official quarantine was ordered during the vacation.
- However, with Section 59 of the Infection Protection Act (IfSG), the legislator created a similar crediting situation to illness as of the end of 2022.
