Vacation: vacation entitlement, illness and educational leave

Who is entitled to vacation?

In principle, every employee is entitled to paid vacation leave per calendar year. This also applies to part-time and marginally employed employees.

However, the prerequisite for full vacation entitlement is that you have already been employed by the company for at least six months. If you have not worked for six months in the current calendar year, you will only be given partial leave. For example, if you were employed 31/2 months in a calendar year, then you are entitled to three twelfth of the full annual vacation.

Der anteilige Urlaub muss Ihnen übrigens auch dann gewährt werden, wenn Sie insgesamt weniger als sechs Monate in einem business gearbeitet haben (z. B. als Aushilfe oder Student während der Semesterferien). In diesem Fall wird der anteilige Urlaub nicht nach den vollen Kalendermonaten, sondern nach der tatsächlichen Beschäftigungsdauer berechnet. Dauerte Ihr Arbeitsverhältnis also z. B. vom B. März bis zum 15. Juli, dann haben Sie Anspruch auf vier Zwölftel des vollen Jahres-urlaubs.

If you were employed in a company for more than six months and your employment relationship ends by June 30 of a calendar year, then you can also only claim part of the vacation.

How much vacation is an employee entitled to?

The length of vacation should - unless it is stipulated in a collective agreement - be regulated in your employment contract. In most collective agreements, annual leave is five to six weeks.

If your employment contract does not contain any vacation regulations, then the Federal Vacation Act applies to you. After that, you can claim a minimum vacation of 24 working days per year. Working days are all calendar days that are not Sundays or public holidays. Severely disabled people are also entitled to five additional days of vacation (six days for a six-day week).

When is the vacation granted?

Temporary leave arrangements are at the employer's discretion. However, the employee is generally obliged to take the employee's wishes into account when drawing up the vacation schedule. The employer may only deviate from this principle if there are urgent operational reasons or the social circumstances of other colleagues so require. As a rule, an employee with school-age children is granted vacation primarily during the vacation period.

If your vacation has already been promised, you can also start your vacation on this date. An exception only applies if, for example, an operational emergency has occurred and you are absolutely needed. However, the costs incurred (e.g. for canceling the trip) must then be reimbursed by the employer.

If you have been denied vacation on the date you requested and you still leave, the employer may terminate the employment relationship without notice. This would also be permissible if you are of the opinion that your boss did not adequately take your wishes into account when planning your vacation. Before you risk a termination without notice, you should turn to the labor court in such a case and have your vacation entitlement clarified there. If you are running out of time before your planned vacation, you can also apply for an injunction. It is best to seek advice from your trade union or a lawyer.

When can the vacation be carried over to the next year?

The vacation must generally be taken during the respective vacation year. Otherwise your vacation entitlement expires at the end of the vacation year. Something different only applies if the employer has not granted you vacation for urgent operational reasons or if you were unable to take vacation for certain reasons (e.g. because you were sick). In this case, your vacation entitlement does not expire until March 31 of the following year (a longer period may also apply according to the collective agreement).

If you do not take your vacation during this time, your vacation entitlement will expire for good, unless you make a different arrangement with your boss.

Wird eine Arbeitnehmerin im Laufe des Urlaubsjahres schwanger, dann dürfen ihr für die Schutzfrist von sechs Wochen vor und acht bzw. zwölf Wochen nach der Entbindung keine Urlaubstage abgezogen werden. Sie kann ihren vollen Jahresurlaub auch noch vor Beginn der Maternity protection period in Anspruch nehmen.

When you get sick while on vacation

If you fell ill while on vacation, the periods of sickness may not count towards your vacation entitlement. Therefore, have the sick days attested during your vacation and present the certificate of incapacity to work to the employer.

However, you are not allowed to add the vacation days that you have missed due to your illness to your regular vacation, otherwise you risk a termination without notice. The best thing to do is to call your boss and ask him if he is happy to extend your vacation around the time of your illness.

When is there an entitlement to financial compensation for vacation?

If your employment relationship ends without you being able to take your vacation (in full), the employer must financially compensate for your vacation entitlement. However, this only applies if you actually no longer have the opportunity to take a vacation because your employment relationship has definitely ended.

Financial compensation for your vacation entitlement is therefore only possible in cases in which either you or your employer have terminated the employment relationship without notice or you are no longer granted vacation due to urgent operational or personal reasons before the employment relationship is terminated in due time can be.

The amount of vacation pay is based on vacation pay, which should not be confused with additional vacation pay. The vacation remuneration is calculated based on the average remuneration that you received in the last thirteen weeks before the start of the vacation.

What are the vacation entitlements when changing jobs?

If you have already received your full vacation entitlement before the end of your last employment relationship, you cannot request any further vacation from your new employer. If you were only granted partial leave at your previous job, you can claim further partial leave from your new employer. However, you must first have completed the six-month waiting period described above. If you did not have any vacation at your old company and were employed by your new employer for at least six months during the calendar year, you can claim the full vacation.

Who is entitled to educational leave?

A distinction must be made between vacation leave and so-called educational leave, which is to be granted to employees and trainees in many federal states. You can take five days of educational leave per year. During this time, your boss must continue to pay you the full wage or salary. If you go to vocational school, you must be released from classes during this time.

The educational leave is primarily intended to serve further professional development or political education. It must be an educational event that is recognized as such by the Ministry of Social Affairs or the Ministry of Education. You can obtain information about the events in question from these ministries (for addresses, see the section entitled “Important addresses relating to the job”).

In principle, you have to pay the costs for such further training measures out of your own pocket. You can only take educational leave if you have been employed or trained for at least six months.

You should inform your employer as early as possible of your wish to be released for educational leave, but no later than six weeks before the leave of absence.

Your employer may only refuse the leave you have applied for if there are compelling operational reasons (e.g. an important assignment) or other colleagues' vacation requests that have priority from a social point of view.

If your employer does not grant you educational leave for the desired period, you can either assert your entitlement at a later date in the current calendar year or have it carried over to the following year. In the latter case, you can even take a two-week educational leave.

Vacation - important judgments

No vacation pay without vacation
If an employee cannot take vacation because of a long illness, the employer does not have to pay him the collectively agreed vacation pay.
BAG - AZ: 9 AZR 255/96

No recall from vacation
If the employer has granted an employee leave, then he is bound by this decision. As a rule, he is therefore not allowed to call the employee back from vacation because of urgent operational issues. Therefore, an agreement according to which the employee undertakes to break off vacation under certain circumstances and to resume work is also ineffective.
BAG, June 20, 2000 - AZ: 9 AZR 404 and 405/99

No vacation entitlement in the event of illness
If an employee does not take his remaining vacation within the specified transfer period (usually March 31 of the following year), he loses his vacation entitlement. This also applies if the employee was sick and for this reason could no longer take the remaining vacation during the transfer period.
BAG - AZ: 9 AZR 792/95

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