Your own wedding. The birth of a child. The funeral of a nearby relative. Or the move to a new one stayed. Is workers on these occasions to be special – possibly even paid? An overview.
The most important thing at a glance:
- No money without work. This golden rule of labor law is only broken in a few cases: in the event of illness, during the annual vacation – and in cases where employees can exceptionally request a paid break from their work.
- If it is impossible for a permanent employee or unreasonable to do his work, he keeps his right to remuneration according to the civil code.
- Labor and collective agreements, but also company agreements, often modify this quite under the term “special leaving”. However, employment contracts can even exclude the claim.
- Employees who want special leave must show their boss their work prevention – similar to an illness.
The regulations on paid or unpaid special leave vary considerably
Vacation is a serious thing – and therefore regulated in its own law. After that, every employee is entitled to paid vacation. However, the legislator does not prove to be particularly generous: According to the Federal Vacation Act (BURLG), anyone working five days a week can only freeze 20 days off a year. During a six-day week, employees are entitled to 24 days of annual leave (§ 3 BurlG).
There are other reasons that most employees can enjoy much longer vacations. “Even with a five-day week, work or collective agreements usually grant between 25 and 30 days off per calendar year,” says Eva Wißler, specialist lawyer for labor law and partner at Pusch Wahlig Workplace Law in Frankfurt/M.
In addition, employees can be entitled to (paid) special leave. This can result either from your employment contract, a collective agreement, or the law. Depending on the industry and contract design, the regulations vary significantly.
Birth, wedding, and death: Paragraph 616 Civil Code allowed special leave
No rule without exception: This also applies to the important labor law principle “no wages without work”. When employees get money exceptionally, even if they do not appear to be on duty, although they are healthy, as regulated in § 616 of the Civil Code (BGB). The regulation states that the right to remuneration remains even if the employee is “prevented from a relatively not significant time by a reason in his person without his fault.”
Paragraph 616 BGB thus essentially records those situations in which it is not possible for an employee or not reasonable to appear to work. “Classic examples of events that justify special leaves are their own wedding, the birth of a child’s child,” says lawyer Wißler.
In which cases only unpaid vacation can be taken
However, there is no right to paid special leave if the employee cannot get to work due to external circumstances – for example, after a storm, all access routes to the office are blocked. “Such a natural disaster is not ‘in the person of the employee. Therefore, paragraph 616 is not relevant here, ”says Wißler. Employees who do not appear in the office (in good time) after a severe storm do not have to fear labor law sanctions. “However, you must not request a payment for the absenteeism,” said the lawyer.
Something else applies if an external circumstance – such as the storm said – has very concrete effects on a single employee and becomes a personal accident. If you are busy pumping out the basement of your house after days of severe storms, you will benefit from the regulation of § 616 BGB and can also request your normal salary during your absence.
Paid vacation for childcare in the event of illness is possible under certain conditions
According to § 616 BGB, employees who want to and have to take care of their sick young people are also entitled to paid exemption. However, the following requirements must be met for this:
- The child is so sick that care is needed.
- The employee can present a medical certificate that confirms the disease.
- The care of the offspring cannot be ensured by relatives or friends.
- The child is not yet twelve years old – or there is a special reason for older children why care is necessary.
- The child lives in the employee’s household
If these prerequisites are met, the working parent is entitled to a paid exemption for a period of up to five working days per year to maintain its sick young people.
The public service’s collective agreement provides for specific regulations for the exemption
Even if § 616 BGB prescribes paid exemption from work for many cases: there is the possibility of contractually excluding the regulation. “Employers often make use of this option. Firstly, to avoid discussions about the duration of the exemption from work and secondly because the statutory health insurance companies in sick children step in and compensate for wage loss, ”explains lawyer Wißler. Only privately insured workers whose children are also in private are not standard. If § 616 BGB is not applicable, the requirements of the employment contract apply instead of the law.
Special regulations and specifications of the regulation are also conceivable through collective agreements. Best example: is the collective agreement of the public service (TVöD). While the BGB is eliminated at the duration of the special URLAUBE, § 29 TVöD not only regulates which occasions are relevant within the framework of Section 616 of the Civil Code. He also makes clear statements about how long the special leave in these cases has to be: The obituary of the wife/ life partner, for example, is worth a day special. When the marriage or life partner death, a child or parent, workers can stay at home for two days, a move for business or operational reasons justifies a day of a special vacation.
The right to statutory recreational leave remains
Important: Employees must immediately inform their boss if they cannot work because of a special event. “If possible, employees should therefore inform their employer as early as possible about an upcoming major event, such as a birth or a wedding,” said lawyer Wißler.
And: The legal right to a relaxing vacation continues in full, regardless of how much special vacation an employee can also claim. However, special leave must always be in a direct time connection with the event that justifies it. The additional days off cannot be made up for. Specifically, if you receive the news on vacation that a nearby relative suddenly passed away, you are not entitled to special leave because of the funeral, since he is already released and can visit the funeral during his vacation.
Births on the holiday: May the special vacation may be made up for
The labor courts rate the situation differently when the birth of their own child falls on a holiday. In such a constellation, the Hagen Labor Court decided at the expense of a committed father: If the child was born on a Sunday, the following working day was not entitled to special leave (file number: 1 approx. 2809/08).
The Cologne State Labor Court proved to be much more cultivated: A special commitment “If the wife’s homeland” had to be taken on the day of the child, but can also be claimed at a later date (ref.: 6 Sa 91/11 ).