Holiday entitlements and COVID-19 in Germany

As the school summer holidays are approaching in most German federal states, employers and employees are increasingly faced with the question of what effects the current pandemic will have on employees' holiday entitlements. Employers are confronted by the question of how they can prevent employees from accumulating more holidays, while employees usually want to avoid taking holidays at times when it is not possible or difficult to travel abroad.

Do employees have to be given back holidays that have already been granted?

If the holiday has already been applied for and granted, changes are regularly only possible if the employer agrees. Employees cannot plead that they cannot take a booked holiday. This is not changed due to the current international travel restrictions that still exist. For travel within the EU, the Schengen area and the United Kingdom, the German Foreign Ministry has announced the cancellation of relevant travel warnings with effect as of 15 June 2020. The purpose of holidays is to recover from the stresses and strains of work. This remains possible even during the Corona period in Germany.

It is common practice not to grant holidays back. This avoids the situation mentioned above, in which employees collect holidays and go on leave in months when the workload is higher again. However, as everywhere, the principle applies that the best solutions are found when the employer and employee work together.

Can holidays be reclaimed from employees?

The other side is also imaginable. A number of industries are currently dependent on every employee, so that employers could come up with the idea of imposing a kind of holiday ban and demand back holidays already granted. However, such a reclaim is only possible in extremely exceptional cases. These absolute exceptions do not include staff shortages, for example due to illness.

Can employees be forced to take holidays?

The so-called company holidays, during which employees are obliged to take leave, are widely discussed. Although this is not so much a relaxing summer holiday as (in many cases) a necessity to maintain the competitiveness of the company, company holidays are an option for the employer to avoid the gathering of holidays by employees.

If the possibility of ordering the holiday is not provided for in the employment contract, the employer must bring forth urgent operational matters when ordering it. Especially at present, the prevention of the spread of the corona virus should be sufficient as a matter of concern.

It should be noted, however, that in companies with a works council, the works council must be involved in such projects. In addition, the company holidays must not exhaust the entire holiday entitlement of the employees. The Federal Labour Court has ruled that a maximum of 3/5 of the annual leave may be defined as company leave. Company holidays must be announced in advance so that employees can prepare for them and plan their holidays accordingly. The arrangement of company holidays must therefore not be used to determine days of holiday at short notice. In the absence of a statutory period of notice, this should be within the scope of what is reasonable.

Apart from company holidays, so-called compulsory leave is not possible. Individual employees cannot be sent on forced leave.

Can employees be compensated for holidays?

In order to meet the recreational purpose of the holiday, it is not possible to disburse the holiday in the existing employment relationship. Leave must be granted and taken in the current calendar year. The employee can therefore not waive his holiday entitlement and have it disbursed instead.

Can employees simply save up their holidays and take them in 2021, for example?

The argument of the recreational purpose of the holiday also applies in this context. The holiday has to actually be taken. If employees do not apply for leave, it expires at the end of 2020, depending on the provisions of the employment contract, or, if there are urgent operational or personal reasons for a transfer, in principle by 31 March 2021 at the latest.

According to the (more recent) case law of the European Court of Justice, the condition for expiry is the request by the employer to actually take the leave. Employers should therefore already now note such a request before the beginning of the summer holiday period, but at the latest for autumn 2020, and document the request (e.g. by sending an e-mail to the employees).

What is the correlation between vacation and short-time work?

In principle, holidays can also be taken during short-time work. This is to be remunerated by the employer at the usual rate. However, short-time work can also lead to a reduction in the holiday entitlement. The consequence of this is that an employee who works less or not at all (short-time work zero) also has a lower entitlement to rest and thus to holidays.

It is still unclear in German law whether the holiday entitlement is automatically reduced during short-time work or whether an explicit provision is required in the employment contract or in a works agreement. It is therefore advisable to address the discontinuation or reduction of vacation entitlements when regulating short-time work and to reach an agreement with the employee.