Four weddings and one death: For human resource managers with a stack of special leave requests on their desks, this title may sound more like a scary movie than British film comedy. But no reason to panic: we will reveal what the special leave is all about and when weddings, bereavement, etc. can justify a special leave.
The level of your employees’ entitlement to annual (recreational) vacation is generally regulated in the employment contract. The statutory minimum leave for a 5-day week is 20 working days. In addition, an additional (relaxation) vacation is often granted by the employer. In various cases, however, a so-called special leave can or must be granted, which must be distinguished from the statutory holiday or from the additional holiday granted by the employer.
What does "special leave" actually mean??
Special leave is not a term that you can find in the law. Rather, it is a colloquial formulation with varying meanings.
What is meant by special leave is usually one of the groups of cases in which German labor law makes an exception to the principle "no work without wages" and thus obliges the employer to pay wages even though the employee is not working.
Special leave, as it is understood here, results from the Provision of § 616 BGB (Civil Code) and represents a special form of the general duty of care of the employer.
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Requirements for special leave
616 BGB provides for the employer to pay the remuneration under certain conditions. According to the wording of section 616 sentence 1 of the German Civil Code, the employee’s right to remuneration is retained whenever the employee "is prevented for a relatively insignificant period of time by a personal reason without being at fault for the work performed."
616 BGB does not explicitly list when the employer is obliged to continue paying the remuneration. However, the case law of the Federal Labor Court has created a number of cases in which the application of Section 616 BGB is generally assessed uniformly. In these cases, it can be assumed that the employer is obliged to release the employee while paying the wages.
This includes situations such as
- family events where the presence of the employee is considered essential
- personal accidents such as a fire in the apartment or a traffic accident
Of course, other cases are conceivable in which employees can claim the so-called special leave, since these cases are by no means conclusive. An examination in the individual case is therefore always necessary.
Special leave for family events
According to the case law, the employee is generally entitled to special leave for the following family events:
- your own wedding,
- the registration of a civil partnership according to the law on the registered civil partnership (LPartG),
- the wedding of children and remarriage of a parent,
- the golden wedding of the parents,
- the birth of your own child,
- Funerals in the close family (parents, children and siblings).
Special leave when moving
It is controversial whether the employee’s move represents a case in accordance with § 616 BGB. Special leave is usually granted if the move takes place for operational reasons, i.e. if the employee moves for the employer. In the event of a move for purely private reasons, there is generally no entitlement to exemption with continued payment of the fee.
When employees move for the employer, the employer usually grants one day of special leave.
Special leave when the employee visits the doctor
According to the case law, an employer only has to grant special leave according to § 616 BGB if the employee has urgent and specific complaints and immediate medical care is necessary.
General examination appointments or treatment appointments of the employee do not fall under § 616 BGB. The employee is generally obliged to arrange visits to the doctor outside of working hours, if this is possible and reasonable.
Exception: The situation is different if, for specific reasons, a visit to the doctor is necessary during working hours, for example, when blood is taken in a sober state and the treating doctor only opens at a time that falls within the employee’s working hours.
Special leave for illness and care of family members
Even if family members get sick and their care becomes necessary, an employee can be exempted in individual cases by continuing to pay according to § 616 BGB. The care of family members is generally regarded as a personal obstacle for the employee.
However, which family members are covered by the special leave scheme is controversial. The employer must weigh up and decide in individual cases.
He has to check whether it is unreasonable for the employee in a specific case to perform his work even though a family member is ill. For example, is there a “special proximity relationship” between the employee and the family member that is not only based on proximity? Is the family member also specifically dependent on the help and care of the employee, because no suitable caregiver is available?
Attention: If other care, such as from a person living outside the household, is possible and reasonable, the employer does not have to release the employee by paying the remuneration.
According to scheme F, it is not possible to list which family members who are ill justify special leave.
Basically, however, this includes
- the spouses and the life partners,
- the parents and the siblings,
- your own children.
There is an additional regulation for children.
Special leave in the event of illness of the children
The special case for paid leave of absence for employees whose children are ill is set out in Section 45 SGB V.. Until the child is twelve years is old, an illness is usually a personal reason for performance hindrance for both parents.
If both parents are working, they can decide for themselves who takes care of the sick child. If only one parent works, the non-working parent has to take care of the child, since then the working parent’s exemption is generally not necessary and is therefore unreasonable for the employer.
- 45 SGB V gives the employee a claim against the social security institution for sick pay and a claim for unpaid leave for the duration of the right to sick pay.
But as the child ages, the need for care decreases. The employee’s release from work while paying the wages is to be assessed for children after the age of 12 as for other family members.
Attention: § 616 BGB takes precedence over the regulation in § 45 SGB V, which represents a mere right to exemption. An employee can only fall back on § 45 SGB V if the requirements of § 616 BGB are not fulfilled or his entitlement to special leave according to § 616 BGB for the existing case was not waived in the employment contract.
Dependability of § 616 BGB
The application of § 616 BGB can be changed or excluded in principle in an employment or collective agreement or a company agreement.
Employers who want to exclude the employee’s rights in this regard can include a corresponding wording in the employment contract. However, caution is required with regard to the specific wording. It is controversial to what extent the exclusion is possible within the framework of the individual agreements. For example, jurisprudence assumes that a complete exclusion of Section 616 BGB by a clause in a form employment contract puts the employee at an inadequate disadvantage and is therefore ineffective.
Basically: The more specifically the exclusion of individual events is agreed, the sooner an exclusion clause is effective.
Agreement of special leave
In addition to the cases mentioned in § 616 BGB, special leave can also be agreed in company agreements, collective agreements or individually between the parties to the employment contract.
Because there is freedom of contract, the respective parties are free in this context, for which occasions and duration special leave can be agreed.
The possibility of applying for special leave can be e.g. linked to the duration of the employment relationship (e.g. anniversary leave or loyalty leave) or to certain events (e.g. birthday of the employee, Shrove Tuesday).
If a company agreement, a collective agreement or the employment contract contains a special regulation on special leave, then this regulation takes precedence over the general statutory regulation of § 616 BGB.
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