Paid Leave and Leave

For employees who have concluded a (private law) employment contract with their employers, their right to paid leave is regulated by the Paid Annual Leave Act. This law also applies to apprentices. In addition, the Paid Annual Leave Act regulates the entitlement to care leave for these employees.

Important Provisions of the Paid Annual Leave Act

Holiday (Vacation) Pay

During paid leave, the employee is entitled to continued payment of wages (holiday pay), also when no work is carried out. Holiday pay should not be confused with the holiday bonus (13^th salary), which is a special payment in many collective agreements.

Entitlement to Paid Leave

For every working year (paid leave year), employees are entitled to– in principal uninterrupted ‒ paid leave lasting five weeks (30 working days in the case of a 6-day working week and 25 working days in the case of a 5-day week). 

From the 26^th year of service with the same employer onwards, the amount of holidays increases to six weeks (36 working days in the case of a 6-day working week, and 30 working days in the case of a 5-day working week).

Recognition of Previous Periods of Service

Entitlement to paid leave is not only measured by an employee’s period of service in their current employment relationship. Certain previous periods of service as defined in the Paid Annual Leave Act also have to be taken into account when calculating entitlement to paid leave. These include periods of service with the same employer from an earlier employment relationship, periods of service in another employment relationship – as long as this has lasted at least six months – and periods spent at school and in higher education. However, these periods of previous service are only taken into account up to a certain maximum period of time.

How Entitlement to Paid Leave Arises

First year of work: Entitlement to paid leave in the first six months is on a pro-rata basis – in other words in relation to the period of service with the current employer. After six months, the employee is entitled to the full amount of paid leave.
Second and subsequent years of work: From the second year of work, the entire amount of paid leave arises as of the beginning of the working year – in other words on the first day of the second year and the third year of work, etc. 

Paid Leave for Part-Time Employees

The Paid Annual Leave Act applies to both full-time and part-time workers in the same way. The amount of paid leave to which employees are entitled is proportionate to the amount of work they have to do in a year.

Statutory entitlement to paid leave has to be converted here from standard working days to the number of whole working days actually worked in the company. The calculation of the number of days of paid leave is made as follows: actual working days per week multiplied by entitlement to paid leave in weeks = number of days of paid leave.

This means that the entitlement to paid leave of part-time workers is the same as that of full-time workers when expressed in calendar weeks. Part-time workers are entitled to as many days of paid leave as they regularly work per working week.

Examples:

• If a person regularly works one day a week, this results in five days of paid leave per year in the case of five-week annual holidays (one working day per week multiplied by five weeks of entitlement to paid leave. The employee thus has a total of five calendar weeks off.
• If a person regularly works two days a week, this results in ten days of paid leave per year (two working day per week multiplied by five weeks of entitlement to paid leave). The employee can thus also take five calendar weeks off.
• In the case of 20 hours a week divided up over five days, the person is entitled to 25 days of paid leave. (five half working days per week multiplied by five weeks of entitlement to paid leave). This employee can also take five calendar weeks off.

Consumption of Paid Leave

The specific dates of paid leave and the duration of paid leave are agreed between the parties to the employment contract. Paid leave agreements principally have to be made in such a way that the paid leave can be used in the year in which the entitlement has arisen.
Employees cannot be ‘sent’ on paid leave unilaterally by their employers. In turn, an employee going on paid leave whenever they want is a reason for dismissal.

Paid leave can also be taken a few days at a time if the employee so wishes.

Using Up Paid Leave During a Period of Notice

Principally, paid leave can also be taken during a period of notice. However, as is usually the case, a paid leave agreement has to made with the employer. 

Expiry of Entitlement to Paid Leave

According to the law, the period of limitation begins with the end of the paid leave year in which the entitlement to paid leave arose, and ends two years later. After the limitation period has expired the paid leave can no longer be taken.

Example:

If the employment relationship begins on 1 January 2016, the period of limitation for this paid leave year starts on 1 January 2017 and ends on 31 December 2018.

Please note: this deadline is extended by the period of leave when a person takes parental leave according to the Maternity Protection Act or the Paternal Leave Act.

Remaining paid leave which has not been used and has not expired is automatically carried forward to the next paid leave year. Paid leave which is taken in the paid leave holiday year are always deducted from the oldest paid leave entitlement which has not been used up.    

Sickness During Paid Leave

If an employee falls ill during their paid leave, the days of sick leave which are working days on which they were unable to work are not counted as paid leave as long as the illness lasts for more than three days.

Their not being counted as paid leave is conditional on the employee:

• not having caused the illness deliberately or with gross negligence;
• contacting the employer to report the illness immediately when it has lasted for three days, and 
• providing proof of the illness after returning to work (doctor’s certificate or confirmation from the health insurance fund).

Compensatory Payment for Unused Paid Leave and Payout of Paid Leave

If unused paid leave remains after the end of the employment relationship, the employee is entitled to compensation.

In order to calculate the compensation, the pro-rata paid leave entitlement for the current year has to be determined first, whereby already consumed paid leave from the current year are deducted from this pro-rata entitlement. The result then has to be rounded up or down. 

Example: 

• The employment relationship began on 1 February 2014.
• The current paid leave year began on 1 February 2015.
• The employer ended the employment relationship on 31 October 2015. In that year, 273 days had thus passed (1 February to 31 October).
• The employee used up eight days of paid leave in this period.

The pro-rata paid leave entitlement is now calculated by multiplying the entire annual paid leave by the calendar days of the holiday year and dividing the result by 365. 

• Annual paid leave = 30 days
• Calendar days of the paid leave year = 273
•  (30 x 273) / 365 = 22.43 working days of pro-rata paid leave
• In order to determine the paid leave compensation, the already used days of paid leave are deducted:
• 22.43 (working days of pro-rata paid leave) – eight (used up  days pf paid leave) = 14.43 working days compensation.

Compensation has to be paid for the remaining unused paid leave. The calculation basis for the compensation for this paid leave is the paid leave pay which the employee was (at that time theoretically) entitled to at the time the employment relationship was ended.

Please note: depending on whether the entitlement to paid leave is measured in working days (i.e. days of the week on which work is carried out) or days on which they actually worked, the theoretical entitlement to paid leave pay is calculated on the basis of working days or days worked.
Paid leave pay received for an excessive amount of paid leave used does not have to be repaid except in the case of a person prematurely leaving their job without good reason or dismissal due to their own fault.

If a person leaves their job prematurely without good reason, no compensation is paid for unused paid leave.

For unused paid leave from previous holiday years, full compensation is due for the unpaid paid leave money unless the entitlement to paid leave has already expired.

During an ongoing employment relationship, any kind of compensation for unused paid leave in the form of money or other benefits (payout of paid leave, Urlaubsablöse) is not permitted and has no effect on entitlement.

In the case of the death of the employee, their heirs (the specific entitlement to inherit is decisive here) are entitled to compensation corresponding to their shares of the inheritance.    

Paid Leave Law and Diverging Agreements

The provisions of paid leave law are cogent law in favour of employees and cannot be annulled or limited by employment contracts, collective agreements or company agreements. Only more favourable agreements for employees are permitted.

Special Paid Leave Regulations

With slight deviations, the Paid Annual Leave Act also applies to journalists, caretakers, housekeepers, domestics, actresses and actors, and to workers in agriculture and forestry.

Paid leave law for the following groups is regulated by special provisions:

• Construction workers (Construction Workers’ Annual Leave and Severance Pay Act);
• people who work from home (Work from Home Act, Heimarbeitsgesetz); and
• employment relationships with the Federal Government, the provinces and local authorities.

Care Leave

Forms of Care Leave

• Care leave in the case of illness
• Extended care leave in the case of illness
• Care leave to look after a child
• Care leave to accompany a sick child while it is in hospital

Care leave is regulated in the Paid Annual Leave Act (Section 16), but is not a paid leave entitlement. It is an entitlement to leave from work for important reasons and is based on special provisions, whereby normal payment is continued. 

In order to take advantage of care leave, no agreement with the employer is necessary. If the conditions for entitlement are fulfilled, the employer only needs to be informed that care leave is being taken, and proof of the fulfilled conditions has to be provided. The employee has a free choice of the type of evidence provided for the need for care (a verbal or written message, or a doctor’s certificate).

Care leave can be taken as required – for days at a time or even just for a few hours.

Please note: taking care leave which is unjustified is a reason for dismissal. In case of doubt it should be clarified whether the conditions for entitlement are really given.

Care Leave in the Case of Illness

Employees principally have a right to care leave for up to a week per working year and to continued pay during care leave.

Entitlement to care leave is given when the employee is prevented from carrying out their work because of

• the necessary care
• of a close relative
• living in the same household
• when proof has been provided of this situation.

In the case of the necessary care of a sick child, employees who do not live in the same household as the child also have a right to care leave. This regulation also covers sick foster children and adopted children. 

Whether care is necessary can only be proven in individual cases by the consideration of all circumstances, such as the type and intensity of the illness, the age of the sick child and the family situation of the employee. 

A need for care by the employee is not necessary in cases where another suitable person is available to look after the sick close family member (such as other persons who do not carry out paid work and could provide the care, such as grandparents or spouses).

However, the employee is not obliged to ensure the provision of care personnel at their own cost.

A joint household is considered to be given when people actually live together and share the responsibilities for the household. Whether the persons in question are registered with the authorities as living in the same household is not the decisive factor.

Close family members include:

• Spouses
• Registered partners
• Co-habiting partners
• Direct relatives (parents, grandparents, children, grandchildren, etc.)
• Adopted children and foster children
• Biological children of a spouse or registered partner or co-habiting partner who live in the same household.

Extended Care Leave in the Case of Illness

If a child becomes ill again during the course of the current working year, an entitlement to paid care leave in order to provide necessary care for an additional week can be present under the following conditions:

• The first week of care leave has been completely used up.
• The child who has become ill again (biological child of a spouse or registered partner or co-habiting partner who lives in the same household) is under the age of twelve.
• The employee has no entitlement in this case to continued pay according to other legal provisions, the terms of their collective agreement or their employment contract.

Care Leave to Look After a Child

Entitlement to leave for up to a week per working year is given when the person who constantly or regularly looks after the child is not available for the following reasons:

• Death
• A stay in a sanatorium or care home
• They are serving a sentence in a prison or similar institution upon order of the authorities
• Severe illness
• The discontinuation of the joint household with the person who previously provided care.

In this case too, it is absolutely necessary that the care of the child by the employee is required, and that providing this care cannot be reconciled with carrying out their normal work. 

Whether the care is necessary in individual cases can only be determined by considering all of the circumstances. The provision of care by the employee is not necessary in cases where another suitable person is available to look after the children.

However, an employee can principally not be expected to have to undertake protracted attempts to obtain a place for her/his children in a care facility, or to pay for the services of carers.

Care Leave to Accompany a Sick Child While They Are in Hospital

An entitlement to care leave is also present when it is needed to accompany a sick child (an adopted or foster child or the biological child of a spouse, registered partner or co-habiting partner living in the same household) while they are in hospital or a care home, as long as the child is under the age of ten.

If accompanying a child while they are in hospital is necessary for objective reasons, children over the age of ten can also be accompanied. This is the case, for example, when a doctor’s certificate confirms that the person’s presence is needed for the child to recover.