No Vacation after Long Illness?

The LAG Düsseldorf answered this very relevant question with its judgment of February 2, 2009 (re 12 Sa 486/06).

Ouchy was consecutively on sick leave from September 2004 through September 2005 and afterwards she left the company because she started collecting a pension due to a total discounting of her earning capacity. Her normal annual vacation was for seven weeks, dividng into four weeks statutory vacation, one extra week as a handicapped, and two more weeks vacation, because of the labor agreement. When leaving the company, Ouchy demanded to be reimbursed for vacation that she was not able to take due to her illness. Since the former employer disagreed, she sought legal recourse in court.

The court held that even when an employer is sick beyond the March 31 (statutory deadline where vacation lapses), he is still entitled to take his vacation after recovery or be financially reimbursed. This is the final decision after the original case was presented at ECJ (January 20, 2009, re: C-350-06) to test conformity of German regulations with art. 7 EC-Directive 2003/88).

Therefore, following rules must be applied in Germany for annual four weeks of vacation:

Vacation is obtained not only for time during which the employee rendered his labor but also for times in which he had proper sick leave,

• vacation does lapse but in the case vacation was not granted during the previous year due to illness, it will be granted afterwards,
• at the termination of the labor relationship, the employee has the right to take the remaining vacation even if he was on sick leave the whole time or is still on sick leave.

However, the Landesarbeitsgericht Düsseldorf did partially dismiss the case because the rules pursuant to EC-Directive 2003/88 are only applicable to interpreting and implementing the Bundesurlaubsgesetz (Federal Vacation Act). Since Ouchy was employed in public services which has its own tariffs and tariff bonuses as extra vacation, the Directive is not applicable for special regulations in tariffs or individual stipulations. Therefore, only the statutory minimum vacation will be carried forward through sickness. Thus, the two weeks vacation from the tariff agreement have lapsed, but the statutory four weeks were not touched by her illness and were to be reimbursed at the termination of the labor contract. Special vacation like from tariffs will not be considered.