Do you lose overtime if you fall ill?
Imagine the following situation: An employee has an employment contract under German law. He has accumulated overtime during a work-intensive phase. The company's internal regulation is that this overtime is not paid out, but can be taken in the form of flexitime compensation after prior application.
No sooner said than done - the employee applies for compensation for overtime in the amount of one working day. He receives the go-ahead for this from his superior.
However, the employee subsequently falls ill. The flexitime day falls during his absence due to illness. What happens now?
The Federal Labour Court in Erfurt (https://www.bundesarbeitsgericht.de/) has ruled that, according to the general legal situation, time off remains in effect even if the employee is incapacitated for work during the compensation period. The employer has already fulfilled the entitlement to compensatory time off by releasing the employee from the obligation to work. The employer is not responsible for the subsequent impossibility of taking time off from an existing work obligation due to the employee's incapacity for work (Section § 275 of the German Civil Code (BGB)) and therefore leads to the working time account also being debited for the period of incapacity for work (see the decision of the Federal Labour Court (BAG, judgement of 11.9.2003 - 6 AZR 374/02 - https://www.bundesarbeitsgericht.de/entscheidung/7-azr-774-10/). In plain language, this means that the hours are lost.
Do you lose vacation days if you get sick?
And what happens if you fall ill during regular vacation days and have a doctor's certificate? - The regulations on vacation entitlement in the event of illness are clearly defined in Section § 9 of the German Federal Leave Act (BUrlG). Currently, every employer must grant at least 20 days (for a five-day week) or 24 days (for a six-day week). Depending on the employment or collective agreement, however, it can be more.
Severely disabled employees with a five-day week currently have an additional five days of annual leave. According to this, the vacation entitlement from the recreational leave quota (regular vacation days) does not lapse in the event of illness.
Even in the event of long-term illness, the entitlement to leave remains in place. This means that the vacation entitlement may not be reduced for the days on sick leave. However, there is an exception if vacation days are not taken even 15 months after the calendar year in which the entitlement arose. A final forfeiture of vacation days is therefore only to be expected after several years of sick leave, or on March 31 of the calendar year after (see the decision of the Federal Labour Court BAG, judgement: 9 AZR 353/10). (Collective agreements can grant more time here).
A reduction in vacation due to illness is not permitted.
I publish interesting questions about German employment law judgements on this blog regularly. If you need special advice tailored upon your individual case, don't hesitate to get in contact with me.
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