08-31-2021  | Update Employment Law September 2021

No chargeback of the vacation in case of corona quarantine




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Bonn Labour Court 07 July 2021 - 2 Ca 504/21

If an employee becomes ill during his vacation, the days of inability to work as evidenced by a physician's certificate shall not be applied toward annual vacation (s 9 German Federal Leave Act (BUrlG)). The Halle Labour Court (judgement of 23 June 2021 - 4 Ca 285/21) has already decided that this legal basis is neither directly nor analogously applicable to the case in which an employee has to go into domestic quarantine during his holiday due to an official order without being infected with the coronavirus himself. 

Facts

In the case decided by the Bonn Labour Court, the employee also had to be in quarantine - at least partially - during her holiday, but the employee herself had tested positive for the Corona virus. However, she did not show any symptoms of illness. She did not have her incapacity for work certified - which ultimately proved to be her undoing. Subsequently, she demanded that her employer „chargeback“ her holiday for the period of quarantine, which the employer refused to do.

Decision of Bonn Labour Court

The Bonn Labour Court dismissed the claim. In its reasoning, it stated that the requirements for the subsequent granting of vacation days in the event of incapacity for work were not met.

  1. No direct application of s 9 German Federal Leave Act (BUrlG): According to the Bonn Labour Court, a "chargeback" of holiday days can only be considered if the inability to work is proven by a certificate of incapacity for work from the doctor. The background to this regulation is not only the prevention of abuse at the expense of the employer. Rather, the assessment of whether an illness in an individual case leads to an inability to work due to the design of the employee's individual workplace is also subject to the medical assessment. 

    The official quarantine order is also not equivalent to incapacity for work. It was clear from the order that the plaintiff had contracted the coronavirus. However, an assessment of the plaintiff's ability to work was not made in the order and was also not incumbent on the city. The assessment of the consequences of an illness on the specific workplace is rather incumbent on a doctor.

    It would also have been possible for the plaintiff to obtain a medical certificate by telephone at the relevant time due to the pandemic-related exemption.
     
  2. No analogy of s 9 BUrlG: The requirement for an analogous application of s 9 BUrlG to an illness with the coronavirus and the resulting isolation order is the existence of an unplanned regulatory gap as well as a comparable factual situation. In the opinion of the Bonn Labor Court, these requirements were not met.

    It has already been clarified in several court decisions in the past that events that interfere with holidays basically fall within the scope of risk of the individual employee as part of the personal fate of life. Only in the case of illness leading to incapacity for work has the legislator provided for a change in the distribution of risk with s 9 BUrlG. Thus, s 9 BUrlG is an exceptional provision which is to be interpreted narrowly and which, in principle, is not amenable to analogous application. 

    In any event, there was no comparable factual situation. An illness with the coronavirus does not directly and necessarily lead to incapacity for work. A comparable impairment is also not necessarily present in the case of an illness with the coronavirus. Because a asymptomatic course does not lead directly to an incapacity for work. In particular, the Bonn Labour Court clarified that in individual cases employees can continue to perform work from home office despite an illness with the coronavirus and an isolation order - as an illness does not always indicate an inability to work - and the purpose of the Federal Leave Act, namely the recovery of the employee from his work performance, can still be achieved by granting leave.

Conclusion

The judgment of the Bonn Labour Court deserves approval and is in line with the established case law on s 9 BUrlG, according to which, in principle, all events that interfere with leave fall within the employee's sphere of risk. The law provides a clear regulation as to when the employer is obliged to grant additional leave. If there is no deviating individual contractual or collective-law regulation, employers should demand a certificate of incapacity for work before "chargebacking" vacation days due to an official quarantine order. Even if this case has not yet been clarified by the highest court, the ruling of the Bonn Labour Court provides good arguments as to how an employer can react in such cases.

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