Entitlement to vacation in the event of illness? You have to know that

If an employee falls ill during his vacation or cannot take it on at all, this does not mean that the vacation days are lost. Because even if you get sick during your vacation, you should report this to the employer. As a result, the vacation entitlement remains in the event of illness, the vacation days do not expire and can be made up at another time.

Vacation despite illness?

In this case, however, there is an even stricter obligation to provide evidence and the employee must be informed immediately of the inability to work, otherwise the vacation entitlement will lapse.

The leave entitlement in the event of illness is retained even if the vacation cannot be started due to the incapacity to work.

If the employee gets sick before the start of the vacation, all vacation days must be granted again at a different time.

Of course, in this case too, the employee must immediately report his incapacity to work and present a medical certificate of incapacity for work lasting more than 3 days.

What must workers pay attention to when reporting sick on vacation?

Basically, the same obligations apply for a sick report on vacation as for an illness during normal working hours. Even when staying abroad, the employees must immediately report the incapacity to work to their boss and tell them how long it is likely to last.

The sick notification should be made on the first day of incapacity to work in the fastest possible form of transmission. This means that when you go on vacation abroad you do not choose the slow postal route, but leave a message by phone or fax to the boss.

In addition, the employee must provide his holiday address at which he can be reached and inform the employer when he returns from abroad. Members of the statutory health insurance must also report the inability to work and their duration to the health insurance company.

Reporting sick on vacation?

To ensure that the right to vacation does not expire in the event of illness, the employee must prove that he was actually sick at the time mentioned and was therefore also unable to work.
As a rule, a medical disability certificate must then be presented. If the disease persists for more than 3 days.
In this case, however, the boss can require that the employee has to submit a medical certificate from the first day of illness.
A disability certificate must also be presented if the employee is abroad.
Caution should be exercised especially when visiting a doctor abroad. Because here many certificates do not comply with the obligation to prove by law. In addition, the certificate should provide concrete evidence that the boss is actually unable to work and cannot perform his usual job due to the illness.
Only then will the vacation entitlement remain in the event of illness.

Many employers are particularly critical of sick leave on vacation. For this reason, the doctor’s certificate should not only prove the illness of the worker, but also the inability to work. Even in the event of illness, the holiday may not be extended at one’s own discretion.

The employee does not lose his vacation entitlement in the event of illness. But the vacation ends as agreed. It looks different, of course, if the illness lasts longer than the vacation.

What happens if the incapacity to work is not reported immediately?

If the incapacity to work is not reported immediately, this failure can affect the entitlement to vacation. Because the entitlement to vacation in the event of illness only applies from the time of notification of sickness. In addition, the employer can issue a warning and, in the event of repeated omission, even ordinary termination. The situation is similar if the illness lasts longer than 3 working days and the employee fails to present a medical certificate of incapacity for work.

Entitlement to vacation in the event of illness – vacation days must be granted

The vacation entitlement does not expire even if you are unable to work on vacation. Leave days lost due to illness must always be provided by the employer. Continued payment of wages can, however, be influenced by the employee’s light-minded or deliberate behavior.

If the employee fell ill through his own fault, the employer can stop the continued payment. At which point one speaks of carelessness, however, cannot be determined in principle. A court may then have to decide whether the employee is responsible for the incapacity to work.

Entitlement to vacation for long-term illness

The vacation entitlement is independent of the work performed and remains even in the case of long-term illness.

Even if an employee was on sick leave throughout the calendar year without interruption, according to the case law of the Federal Labor Court (BAG) he is entitled to vacation. Due to the incapacity to work, the right to vacation in the event of illness cannot be asserted at this time.

This means that those who are sick cannot take a vacation.

The vacation entitlement expires in the event of illness?

The holiday entitlement does not expire even in the case of long-term illness and can be secured. Until now, the remaining vacation could only be secured until March 31 of the next calendar year in accordance with Section 7 (3) of the Federal Vacation Law (BUrlG). This limitation has been a thing of the past since 2009. As part of the Schultz-Hoff judgment, the European Court of Justice ruled that workers who could not exercise their vacation entitlement due to incapacity to work can secure it indefinitely and that it should not automatically lapse after March 31 of the following calendar year.

Below is a case study for a vacation entitlement:

Ms. M. was on sick leave throughout 2011 and was therefore unable to claim her vacation rights during this period. In September 2012 she is healthy again and can go back to work as usual consequences. In this case, however, she is still entitled to the entire vacation from 2011 and 2012.

This means that she has a statutory vacation entitlement of 8 weeks. Even before the judgment of the European Court of Justice in 2009, Ms. M. could have taken the vacation of the previous year (i.e. 2012) until March 31, 2013 so that it would not expire.

What are the advantages and disadvantages of the Schultz-Hoff judgment for the employees?

Thanks to the Schultz-Hoff judgment, vacation entitlement is retained even in the case of long-term illness. This means that long-term incapable workers after recovery have their entitlement to leave the previous one years can assert.

However, the judgment offers yet another advantage for employees who leave the employment relationship after a long-term incapacity to work. Because they now receive a vacation allowance for their vacation entitlement, which they acquired during their incapacity to work and can no longer claim.

Even if the judgment of the European Court of Justice is advantageous for the workers, it hits the employers all the harder. In this case, companies have to pay a long-term employee an extremely high compensation upon termination of their employment. Especially small Companies experience an economically heavy burden as a result.

BAG sets a time limit for the accumulation of vacation entitlement in the event of illness

In August 2012, the BAG decided that the vacation entitlement expires after 15 months in the event of illness and that you should not accumulate it for years. Employees who are long-term ill can therefore only accumulate their vacation entitlement over a period of two years and claim it after recovery, or have it paid out when the employment relationship ends.

Below is a case study:

Mr. L. was unable to work at the beginning of 2008. The employment relationship ended on March 31, 2012. After leaving the company, Mr. L. demands compensation for 85 vacation days. For each year he is entitled to a statutory minimum vacation of 20 days and for the 3 months another 5 days. However, after the BAG has been limited, he can only expect a vacation fee for 25 days.

The vacation days from 2008 expired on March 31, 2010, the vacation entitlement from 2009 expired on March 31, 2011 and the vacation from 2010 would expire on March 31, 2012. If Mr. L. had informed himself in good time about the fixed rules regarding vacation entitlement in the event of illness, such an erroneous belief would certainly not have happened to him.

This is because Mr. L. can only claim the vacation fee for the vacation entitlement from 2011 and the 3 months in 2012 from his employer, which corresponds to a total vacation entitlement of only 25 days. This means that Mr. L. no longer has a vacation entitlement for the years 2008 to 2010 and therefore no vacation entitlement for the 60 days from this period.