Germany Update: Vacation days in quarantine – No obligation to grant re-grant

An employee is not entitled to subsequent leave if he has had to spend vacation days in isolation due to an official quarantine order and there has not been a certificate of incapacity for work for this period. This was decided by the Bonn Labour Court.

Background

‘If an employee falls ill during the leave, the days of incapacity for work proven by a medical certificate shall not be counted towards the annual leave.’ This is the regulation of § 9 of the Federal Leave Act (BUrlG). During the period of granting leave, the employee is exempt from the obligation to perform his work, taking into account his annual leave. § 9 BUrlG regulates an exception here. The legislator assumes that the obligation to work in the event of illness cannot also be abolished by granting leave. Vacation and illness are mutually mutually closed. The employee’s days of leave granted are granted for the period of leave for which he proves the illness by presenting a certificate of incapacity for work.

Circumstance

The plaintiff was granted leave for the period 30.11.2020 to 12.12.2020. However, she contracted the coronavirus. An official order stipulated that she had to go into quarantine from 27.11.2020 to 07.12.2020. For the period in which quarantine and leave overlapped, she demanded that her employer grant the leave days. A certificate of incapacity for work was not available. The employer refused to grant the subsequent payment. The plaintiff then went to the labour court and asserted the subsequent grant in court.

Decision

The Bonn Labour Court dismissed the action. In support of its reasoning, it stated that the conditions laid down in Paragraph 9 of the BUrlG were not met. The plaintiff was unable to provide a certificate of incapacity for work.

The official quarantine order is also not equivalent to an inability to work. The order alone is not sufficient for the assumption of incapacity for work. The assessment of whether an employee is incapacitated for work is the responsibility of a doctor.

The court also dealt with an analogous application of § 9 BUrlG to the existence of an official quarantine order. The analogous application would provide for an application to this case, although it is not covered by the wording of the law. A prerequisite for an analogous application is, among other things, a comparable state of interest. The Court of First Instance denied such a decision. The justification is that an infection with the coronavirus does not directly cause an inability to work due to an illness.

The judgment is not yet final. The judgment can be appealed to the Regional Labour Court in Cologne. Whether this has happened is not known at the time of publication of this article.

Result

The verdict of the Bonn Labour Court deserves approval. The law provides for clear regulations as to when the employer is obliged to grant leave. The Reasoning of the Labour Court for the rejection of the analogous application to the case of the official quarantine order is also convincing. Illness with Covid-19 does not directly lead to incapacity for work. An assessment of the inability to work is rightly reserved for a doctor.

It remains to be seen whether this will lead to an appeal procedure. However, a different decision of the Cologne Regional Labour Court would not be expected. In addition, it should also be noted that leave must in principle be granted by the employer before it starts. If an employee extends his or her leave on his or her own authority – for example, due to a quarantine order – he or she is in breach of his or her obligations under employment law. Such conduct may result in disciplinary action, up to and including dismissal.

By Steffen Lindenr, MELCHERS, Germany, a Transatlantic Law International Affiliated Firm. 

For further information or for any assistance please contact germanylabor@transatlanticlaw.com

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