June 19, 2023 /
If an employee contracts coronavirus shortly before their vacation and has to spend it in quarantine, this is not a reason to take the vacation days retrospectively. This is the assessment of Priit Pikamäe, Advocate General at the European Court of Justice, in his Opinion.
Cause of action
In December 2020, an employee of a savings bank took a few days’ vacation. Shortly before going on vacation, however, he had contact with a corona-positive colleague at work, so quarantine was ordered. The employee had to spend his vacation in quarantine, switching between his bedroom and bathroom so as not to endanger anyone else in his house. He asked his employer to make up the “lost” days, which the savings bank refused.
No entitlement to recovery
The case was then submitted to the Ludwigshafen am Rhein Labor Court (ArbG) and finally referred to the ECJ for clarification by the presiding judge, Thomas Faulstroh. The main question is whether, in the case of such unforeseeable events, Union law calls into question the leave that is deemed to have been taken under German law. It has been recognized that employees are significantly restricted in their personal activities and movements during quarantine, but according to the Advocate General, this does not change the potential consumption of vacation days. The focus of the relevant Art. 31 of the EU Charter and Art. 7 of the Working Time Directive (2003/88) is that EU employees first receive leave. The aim is to give employees the opportunity to relax, not to work and to dispose of their time freely – no more, no less.
Furthermore, the Advocate General emphasizes that it is not clear from these regulations and previous ECJ case law that vacations must actually guarantee relaxation, recreation and leisure activities. The Advocate General argues in his Opinion that “the right to paid annual leave should not be confused with the right to the actual outcome of such leave”. Otherwise, there should never be a disruptive event during the vacation for the days to be considered taken. Therefore, in the opinion of the Advocate General, European vacation law is not the solution for such cases. National law, such as German law in this case, according to which vacation days are deemed to have been taken despite quarantine, does not contradict EU law. However, it should be noted that this case relates to an older legal situation: Leave is only deemed to have been used in cases up to September 2022. Since then, Section 59 of the Infection Protection Act (IfSG) stipulates that the days of isolation are no longer counted towards annual leave.
Decisions of other authorities
In Germany, the Schleswig-Holstein Regional Labor Court (LAG) (AZ: 1 Sa 208/21) and the Neumünster Labor Court (AZ: 3 Ca 362 b/21), as well as the Federal Labor Court in its 2020 ruling (AZ: 9 AZR 612/9), have already ruled that leave does not guarantee an entitlement to rest. The reasoning of the courts: “Employers owe leave of absence from work with full pay, but no additional vacation entitlement”. Anything that may affect vacation is at the employee’s risk. This means that a mere quarantine is not yet an inability to work.
The situation is different in the case of medically certified illness. In accordance with §9 BurlG, the days of incapacity for work are reimbursed.