You think that in Germany even the smallest detail is written down in the legal code? This is not the case, as the example of special leave shows. With this information, however, employees are on the safe side.
Marriage, birth or death: In such cases, employees do not necessarily have to debit their holiday account. In some cases, they can take special leave instead. One, two or three days? When it comes to special leave, there can be discretion if nothing is stipulated in the employment contract. So who is eligible for paid time off and when?
What exactly is special leave?
From a legal point of view, special leave is actually the “mutual release of both parties to the employment contract from the main obligations arising from the employment relationship,” as Marc André Gimmy, lawyer and specialist lawyer for labor law, explains. Employees are exempt from the obligation to work, the employer does not have to pay wages for this period. “The employment relationship is suspended.”
In colloquial use of the term, special leave often means exemption from the obligation to work while continuing to pay the salary. Special leave is then treated as an additional day of leave and paid accordingly.
How is the special leave arranged?
Special leave is not generally regulated by law. In contrast to the regulations on vacation leave, which are regulated in the Federal Vacation Act and are known to most employees, there is often no in-depth knowledge of the subject of special vacation, says Gimmy.
However, it is always worth taking a look at the employment or collective agreement. According to Gimmy, there are often “more or less detailed regulations” about the circumstances under which employees can claim a few days of paid special leave.
Does Paragraph 616 from the German Civil Code help?
If there is no passage on special leave in the employment contract or in a company agreement, paragraph 616 of the German Civil Code (BGB) can help. Under certain circumstances, it represents the legal basis for entitlement to (paid) special leave. Basically, it stipulates the following: If an employee is temporarily prevented from doing work for personal reasons, he or she still gets his or her leave for the downtime Compensation.
But be careful: “Since this regulation is discretionary, i.e. it can be specified, modified or even excluded by an employment contract, collective agreement or company agreement, it does not apply to all employment relationships,” says lawyer Gimmy.
However, if all the requirements of Section 616 BGB are met, employees are entitled to the employer releasing them from work and still continuing to pay their salary for this period. However, it should be noted that paragraph 616 of the German Civil Code only covers temporary hindrances. As a rule, one or two days is assumed here.
On what occasions can special leave be given?
Special family events at which it is essential for the employee to be present can justify an entitlement to special leave. These include:
Does the employment relationship play a role?
Kaarina Hauer, Head of Legal Advice at the Bremen Chamber of Labor, has the following experience: Employers who do not have a contractual or collective bargaining agreement are usually more accommodating when it comes to special leave when it comes to particularly life situations.
“It also plays a role how long the employment relationship has existed,” says Hauer. Someone who is employed for a limited period of six months will presumably get fewer days of special leave for individual events than someone who has been employed in a company for 20 years. And in principle, employment relationships are better secured due to collective agreements – even when it comes to paid special leave.
Does special leave have to be approved?
In principle, the following applies: Special leave must also be applied for and approved by the employer. As in many questions of professional interaction, the rule applies: talk to each other and, if possible, let us know in good time so that precautions can be taken in the company. If the employer rejects the request for special leave, he must justify it. Employees then still have the option of applying for regular or unpaid leave.
Gimmy thinks that the question of whether fathers will be entitled to two weeks of vacation after the birth of their child is exciting. “So far, fathers have only been entitled to – usually only one day – special leave if the requirements of paragraph 616 of the German Civil Code have been met.” However, the traffic light coalition had already presented plans for changing the parental leave regulations at the end of 2021. “However, it remains to be seen when and if these will be implemented.”
According to Hauer, the federal government is obliged to implement the EU directive on the compatibility of work and private life for parents and carers by August 2022. According to this, fathers would be entitled to ten days of paternity leave immediately after the birth of their child, explains the head of legal advice at the Bremen Chamber of Labor.
(This article was first published on Tuesday, May 10, 2022.)
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