It's finally here, the long-awaited vacation: the bags are packed or, in times of the pandemic, the sun loungers on the balcony have been brought into starting position.
Then the disillusionment: the Corona warning app explodes, the own PCR test results positively.
This is followed shortly after by the health department's order to go into domestic quarantine.
But what happens now with the vacation days? Is a sick person also automatically unable to work?
that LAG Düsseldorf has recently dealt with one such case.
The employee (plaintiff) had received a quarantine order as a result of an infection with the SARS-CoV-2 virus during the vacation period.
However, she did not obtain a certificate of incapacity for work, even by telephone.
The plaintiff now claimed reimbursement of vacation days from her employer.
The Düsseldorf LAG then provided some important guidelines on the above case:
- The right to paid annual leave under Section 1 BUrlG The object is exclusively exemption from work obligations and payment of vacation pay.
The employer does not owe the employee any additional “vacation success”.
- All vacation-disruptive events that occur after the vacation period has been defined and the vacation pay has been unconditionally promised fall within the individual employee's area of risk as part of the personal destiny of the individual employee.
- The decision notifying the employee that he is subject to Section 2 No. 4 IFSG is regarded as a sick person is not equivalent to a certificate of incapacity for work.
The concepts of illness within the meaning of the IFSG and incapacity for work within the meaning of EFZG must be clearly differentiated from one another.
Attention exception:
Something else applies after Section 9 BUrlGif the employee becomes unable to work during the approved vacation period as certified by a doctor.
If incapacity for work and vacation come together, incapacity for work has priority.
If the employee actually falls ill during vacation and can prove this with a certificate of incapacity for work, the vacation days must be reimbursed.
Short & concise:
In summary, it should therefore be stated that a quarantine order during vacation, even in connection with an existing corona infection, is not sufficient to establish a claim for reimbursement of vacation days.
Only in the case of a result of the disease actual Incapacity to work, which must be proven by a medical certificate, is entitled to reimbursement of vacation days.
However, the last word has not yet been spoken in this case.
In a similar case, the Cologne LAG has also approved the appeal to the BAG, as this is a matter of principle.
It can therefore be assumed that the BAG will address this issue in 2022.
By the way:
The same applies when a child of the employee falls ill during vacation.
Here, too, there is none Right to reimbursement of vacation days.
This is always linked to one's own illness, as confirmed by a certificate.
The verdict of the Düsseldorf LAG is unlikely to be received with cheers by employees.
However, there is no question that the corona pandemic has placed considerable burdens not only on employees but also on employers, and continues to do so.
An open dialogue within the company is an important first step.
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