After the pandemic has kept us in suspense for a long time, we have more than earned our summer vacation as a break. Whether Mallorca, Greece or the Canary Islands - the Germans are in a vacation mood. But be careful: if you are in quarantine while on vacation, you are not automatically considered unfit for work and cannot demand your vacation days back from your employer without presenting a medical certificate. The Bonn Labor Court recently ruled that employees who have to go into officially ordered quarantine during their vacation do not have to have their vacation credited back for this period - unless they can produce a certificate of incapacity for work.

 

Replacement of vacation days in case of illness

From the legislator's point of view, the vacation days are intended for the employee's recreation. The employee should relax and regain his full working capacity in the best possible way. However, the employee cannot do this if he/she is ill - the recovery effect does not occur then. Therefore, in the event that the employee becomes ill during vacation and is unable to work, the employee has a legal right to have the vacation days granted back or "booked back" as remaining vacation if the employee submits a medical certificate to the employer (Section 9 (1) BUrlG). In concrete terms, this means that the employee has a right to have the employer grant him back the vacation days on which the employee was ill.

 

No unilateral chargeback of the vacation

The return of the vacation days is not automatic, nor can the employee unilaterally extend his or her vacation. This is because the employer has already done everything necessary to grant the vacation by determining the vacation period and paying the vacation pay. It is important to note: The employer does not owe the occurrence of a vacation success. Therefore, the employee must actively act to obtain a chargeback of the leave. In order to prove the inability to work to the employer, employees need a medical certificate from the first day of illness. Therefore, if the employee does not act on his own initiative, he will not get the vacation days back.

 

Official quarantine order = inability to work?

But what happens to the vacation entitlement if an employee has to go into quarantine during vacation due to an official order because he or she has had contact with an infected person or has become infected himself or herself? This case is not regulated by statutory law. However, the Bonn Labor Court recently dealt with this interesting question. 

In the case brought before the Bonn Labor Court, the employee had become infected with the corona virus before taking her vacation and had to go into quarantine for a certain period of her vacation due to an official order. However, the employee did not go to the doctor and did not have her incapacity for work certified - which ultimately proved to be her undoing. She demanded that her employer grant her leave for the period of quarantine, which the employer refused to do. The Labor Court also rejected the claim, since the requirements for the subsequent granting of vacation days in the event of incapacity for work were not met.

The Bonn Labor Court emphasized that a "chargeback" of vacation is only made in the case of proven incapacity for work, which is not the case without a certificate of incapacity for work from the doctor. An official quarantine order is not equivalent to a medical certificate of incapacity for work, the court said. The assessment of the employee's incapacity for work was the sole responsibility of the attending physician. An illness with the coronavirus also does not necessarily lead to an inability to work. Only a physician can assess whether the employee is actually incapable to work. 

 

No analogy in the case of quarantine ordered by the authorities

This raises the question - which was also addressed by the Bonn Labor Court - of whether the provision in Section 9 of the German Federal Leave Act (BUrlG), which only covers the case of incapacity to work due to illness, should not be applied by analogy to an officially ordered quarantine. According to the unambiguous wording, § 9 BUrlG only covers the case of incapacity to work due to illness. Some lawyers argue for an analogous application of the provision for quarantine ordered by the authorities if the employee is not simultaneously incapacitated for work. 

However, the Bonn Labor Court now also rejected an analogous application of Section 9 BurlG in the case of an official quarantine order in the event of a Corona illness. The court stated that there was neither an unplanned regulatory gap nor a situation comparable to incapacity for work, since an illness with the Corona virus does not necessarily and directly lead to incapacity for work.

The ruling of the Bonn Labor Court is understandable and brings clarity. Because already with the changes of the infection protection law and further new regulations to loss of earnings the legislator could have regulated the consequences for an already granted vacation and passed on the opportunity to do this. This gap in the law can be interpreted as a deliberate omission.

Even if an unplanned regulatory gap were to be assumed, the quarantine ordered by the authorities would have to show a typical comparability with the constellation of an incapacity to work due to illness. However, this is not the case. The quarantine ordered by the authorities leads to the person being "separated". But not every separation results in the person concerned being unable to perform his or her work. This already follows, for example, from the fact that in times of home office, some employees, even if they are not allowed to leave their homes, work from home and can continue to perform their work. 

 

Conclusion 

For employers, however, the ruling is welcome. It can act as guidance regarding the granting of additional vacation days in the event of quarantine. However, some degree of suspense remains: The decision of the ArbG Bonn is not yet legally binding and an appeal to the Regional Labor Court in Cologne is possible.

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