Verfällt der gesetzliche Urlaub bei Krankheit nach 15 Monaten auch bei unterlassener Mitwirkung des Arbeitgebers?

The Federal Labor Court (BAG) has dealt with an interpretation of Section 7 Paragraph 3 BUrlG in accordance with European law several times in the past. According to this standard, vacation must be granted and taken in the current calendar year. In principle, vacation is only carried over to the first three months of the following calendar year if urgent operational or personal reasons justify this.

Two of the most important BAG decisions were these two:

1. No forfeiture of the statutory minimum vacation without a request from the employer

Does an employee's statutory minimum vacation entitlement expire at the end of the calendar year or a permissible carryover period, even if the employee did not take the vacation of his own free will? Yes, the BAG ruled in 2019, but with the important distinction that this only applies if the employer has previously specifically asked the employee to take his vacation in good time during the vacation year and has pointed out to him that it may otherwise be forfeited (BAG, judgment of February 19, 2019 – 9 AZR 423/16). The BAG thus followed a decision of the Court of Justice of the European Union of November 6, 2018 (- C-684/16 - [Max Planck Society for the Advancement of Science]).

2. Expiry of the statutory minimum vacation in the event of long-term illness after 15 months

In addition, the BAG has interpreted the norm of Section 7 Paragraph 3 BUrlG since a decision from 2012 (BAG, judgment of August 7, 2012 - 9 AZR 353/10) in such a way that statutory vacation entitlements in the event that the employee was unable to work during the holiday year for health reasons, only expires 15 months after the end of the holiday year. In this respect, too, the BAG agreed with a decision at European level, namely that of the Court of Justice of the European Union of November 22, 2011 (ref.: C-214/10 - [KHS]).

3. Current dispute: Request from the employer even if the employee is ill for a long time?

Most recently, the Ninth Senate of the BAG (Federal Labor Court, decision of July 7, 2020 - 9 AZR 401/19) had to deal with a hybrid of these two fundamental questions, namely the question of whether statutory vacation entitlements of an employee with a long-term illness are also valid 15 months after The holiday expires at the end of the holiday year if the employer has not previously specifically requested the holiday and pointed out that the holiday will otherwise expire. In the case pending before the BAG, the plaintiff wanted to take remaining vacation from 2017 after March 31, 2019. In the meantime she was ill. While the employer was of the opinion that the vacation entitlement expired at the end of March 2019, the plaintiff argued that the employer neither asked her to take her vacation nor did he point out that the vacation she had not requested would expire at the end of the calendar year or transfer period.

The lower courts ruled in favor of the employer and dismissed the lawsuit. The LAG Hamm argued in particular that any reference by the employer to the impending forfeiture of existing vacation entitlements if they were not used by the end of the vacation year would simply have been wrong due to the long-term illness lasting beyond the end of the vacation year and therefore could not have been granted in the first place (LAG Hamm , judgment of July 24, 2019 – 5 Sa 676/19).

It remains to be seen whether the BAG agrees with this view, as it has sent a request for a preliminary ruling to the Court of Justice of the European Union (ECJ) to clarify this question. The ECJ has now decided whether EU law allows the forfeiture of the holiday entitlement after the expiry of this 15-month period or, if applicable, a longer period, even if the employer did not fulfill its obligation to cooperate during the holiday year, even though the employee had the holiday until the start of the holiday Incapacity to work could have taken place at least partially.

We will of course keep you up to date on this too.

(Source: Federal Labor Court – press release No. 20/20)