Vacation days can expire
When does the remaining vacation expire?
1. Basic information on vacation and remaining vacation
The vacation is regulated in the Federal Vacation Act (BUrlG), the remaining vacation in particular in § 7 Abs. 3 BUrlG.
A minimum vacation of four weeks is stipulated by law. In principle, a vacation of 20 days for a 5-day week is granted, unless more vacation days are agreed in the employment contract or a possibly relevant industry collective agreement. The vacation entitlement is related to the hours worked and is always calculated based on the calendar year. Read here how vacation is calculated in individual constellations such as part-time employment.
While the employee is entitled to vacation on the one hand, he is also obliged to take the vacation to which he is entitled in the current calendar year in order to ensure his recovery.
2. When does the remaining vacation expire?
This is to force the employee to take sufficient time off in his own interest and to prevent an endless accumulation of vacation days. So if employees have the opportunity to take their vacation in the current calendar year, have to they do this according to the law.
Section 7 (3) BUrlG only allows the vacation to be carried over until March 31 of the following year in exceptional cases, if
- urgent operational reasons (e.g. large orders, particularly high incidence of illness in the company)
- reasons inherent in the person of the employee (e.g. own illness, parental leave or maternity leave)
In practice, the personal reasons in particular are rather broadly defined. In this way, one reason for transferring the remaining vacation time may be that the partner did not have the opportunity to take a summer vacation. This depends on the individual case and can be assessed in different ways.
The more recent case law of the European Court of Justice (rulings of November 6, 2018, Az .: C-619/16 and C-684/16) and BAG (ruling of February 19, 2019 - AZR 541/19) now takes the employee a little more into consideration Protection: So the rest of the vacation must not simply expire.
Remaining vacation will therefore only be forfeited if the employer has made the employee aware of the remaining vacation in the current calendar year, has specifically requested him beforehand to take the vacation and has explicitly and unequivocally informed him of the impending expiry.
This obligation incumbent on the employer applies not only to the current calendar year, but also to vacation from previous calendar years. Accordingly, remaining vacation days from the past can possibly also be claimed by the employee.
3. Contractual agreements on vacation and remaining vacation
Deviating agreements can be made in the employment contract, in the collective bargaining agreement or in a works agreement.
The Federal Holiday Act, however, prohibits in § 13 BUrlG, deviating regulations regarding the minimum duration of the holiday and the continued payment of wages during the vacation, which are at the expense of the employee. Accordingly, the vacation days may not be contractually reduced.
The amount of vacation entitlement and whether or how remaining vacation can be carried over is then a matter of the individual case.
4. Remaining leave in the event of illness
If the employee was unable to take the remaining vacation due to illness in the current calendar year, the remaining vacation days are carried over to the following year and can be taken until the end of the first quarter.
In particular, employees with a long-term illness have the right to make up for their missed vacation days at a later point in time. According to relevant case law (BAG, judgment of August 7, 2012 - 9 AZR 353/10), long-term sick people may take their remaining leave until March 31 of the year after next if they have not been able to make up for it by this time due to the illness. After that, this also expires. However, the ruling relates to the statutory minimum vacation - all vacation days beyond this can expire at the end of the year. However, this presupposes a contractually effective differentiation between the statutory minimum vacation and the extra-statutory entitlement to additional vacation.
5. Remaining vacation in the event of termination
The remaining vacation in the event of termination is based on Section 7 (4) BUrlG. How much remaining vacation the employee can still claim depends on the specific time of termination. If the notice is given before June 30th, the employee is entitled to one twelfth of the annual vacation for each full month that he was still employed in this calendar year (so-called “partial vacation”).
If the employment relationship is terminated after June 30th, however, the employee is entitled to the statutory vacation entitlement for an entire working year. The additional vacation entitlement may only be reduced proportionally if this is contractually regulated.
If possible, this leave should be taken during the existing employment relationship.
6. Am I entitled to payment of the remaining vacation?
Many employees also do not take their vacation in the current year in the belief that outstanding vacation days will be paid out. However, because of the intention that the employee should recuperate through the vacation, this is generally not possible. In most cases, vacations not taken are carried over to the next year.
The only exception is termination. One then speaks of vacation pay.
After a notice of termination has been given, the remaining vacation should generally be taken in kind, i.e. actually taken. Only if there is no possibility of this in the existing employment relationship, the vacation will be compensated upon termination of the employment relationship. The payment is based on the average earnings in the last 13 weeks before the end of the employment relationship.
It should be noted that the statutory period of limitation is three years for entitlement to compensation.
- Contractual deviations from the legal regulations on vacation and remaining vacation are possible - but not at the expense of the employee.
- According to the law, the employee is obliged to take vacation in the current calendar year.
- Therefore, any remaining leave generally expires on December 31 of the respective year.
- In special cases, remaining leave can be carried over to the next year for operational or personal reasons.
- The remaining vacation transferred will only expire in the following year if the employee's attention is drawn to his remaining vacation and the impending expiry has been expressly and unequivocally informed.
- In the case of long-term illnesses, the vacation can be taken until March 31 of the year after next.
- In principle, the vacation can only be paid out in the event of termination if it can no longer be taken before leaving the company. The amount to be paid is then calculated based on the last average salary.
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Christina Gehrig works as a lawyer specializing in labor law in the Hasselbach law firm with offices in Cologne, Bonn and Frankfurt am Main. She advises employers, employees, executives and works councils on questions about working hours and wages and salaries.
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