Germany: Quarantine order for periods of approved holiday leave: No entitlement to subsequent granting of leave days for contact persons

BAG, judgement of 28.05.2024 - 9 AZR 216/22

The case: Overlap of quarantine with already approved leave

The plaintiff is an employee and applied for four days' holiday for the end of December 2020, which was approved by his employer in November 2020. Due to contact with a person infected with the coronavirus, the competent health authority ordered the plaintiff to go into home quarantine for 14 days from one week before the start of his leave, which overlapped with the approved leave. The plaintiff himself did not fall ill during this period and remained able to work. At the end of the quarantine, he demanded the employer to credit four working days to his holiday account.

Comparability of sickness-related incapacity to work and ordered quarantine?

In his complaint, the employee argued that his holiday entitlement had not been fulfilled - as he was quarantined for the time of his taken holiday. Therefore, the quarantine would be comparable to an incapacity to work due to illness, where the sick leave would not be counted as holiday days if a medical certificate was presented in accordance with Sec. 9 BurlG (Bundesurlaubsgesetz – German Federal Leave Act). He would also be entitled to such a procedure due to the comparability of the situations.

BAG: Quarantine order after holiday authorisation falls within the employee's sphere of risk

As in the lower courts, the Federal Labour Court (Bundesarbeitsgericht – BAG) rejected the plaintiff's arguments and dismissed the appeal as unfounded. Agreeing with the employer's submission, the BAG stated that the holiday entitlement had lapsed.

If an employer authorises paid leave for recreational purposes for a future period, the employee's obligation to work is cancelled for this period. If other circumstances arise subsequently that would in themselves justify a cancellation of the obligation to work, these are generally not taken into account. Impairments to the quality of the holiday that are not caused by the employer regularly fall within the employee's area of risk.

This was also the case for the plaintiff: the employer had granted him four days' holiday for recreational purposes in accordance with his legal obligation. However, the employer was not responsible for the organisation and quality of the leave, meaning that the subsequent quarantine order fell within the plaintiff's sphere of risk. Accordingly, the employer has fulfilled its obligation and the holiday entitlement has lapsed.

Comparability with incapacity for work due to illness is not given

Exceptions to this principle are only possible in the case of a statutory regulation. One such regulation can be found in Sec. 9 BurlG in the form of the stated prohibition of deducting sick days from holiday leave. If an employee falls ill while on holiday, the days of incapacity for work evidenced by a medical certificate are not counted towards annual leave. The provision takes into account the fact that a sick employee cannot use the holiday for recreational purposes. However, as the plaintiff himself was not unfit for work during the quarantine, the prohibition of crediting does not apply to him.

A corresponding application of Sec. 9 BurlG is also ruled out. At the time in question, the Infection Protection Act contained conclusive regulations that did not provide for a comprehensive equalisation of persons in quarantine with those who were unfit for work, so that there is no room for an analogous application of the Federal Leave Act.

Nevertheless, in its judgement, the BAG firmly rejects the comparability of incapacity for work and the quarantine of a contact person. Holidays and illnesses are mutually exclusive. The recreational purpose could not be fulfilled in the latter case. During quarantine without any illness, however, this is possible - albeit to a limited extent.

From September 2022: Clarification through Sec. 59 I IfSG

In practice, the ruling will be relevant for all unsolved old cases that occurred before 16 September 2022. With the amendment to Sec. 59 I of the Infection Protection Act (Infektionsschutzgesetz – IfSG), which came into force on this date, the legislator clarified that days of quarantine will henceforth not be counted towards annual leave. However, this regulation is only applicable to circumstances after the Act came into force. As confirmed by the BAG, retroactive application is ruled out, meaning that the above statements must be taken into account for previous unsolved periods.