Travel and vacation are the same

Vacation and leave of absence

For employees who have signed an employment contract (under private law) with their employers, the vacation law is regulated in the Vacation Act. This law also applies to apprentices. Furthermore, the Vacation Act regulates the right to care leave for these employees.

Important regulations of the Holiday Act

Vacation pay

During the vacation there is the right to continued payment of the remuneration (vacation remuneration), even if no work is performed. The vacation pay should not be confused with the vacation allowance (13th salary), which is regulated as a special payment in many collective agreements.

Holiday entitlement amount

Employees are entitled to five weeks of uninterrupted paid vacation for each working year (vacation year) (30 working days for a 6-day working week or 25 working days for a 5-day working week).

From the 26th year of service with the same employer, the amount of vacation increases to six weeks (36 working days for a 6-day working week or 30 working days for a 5-day working week).

Prior employment crediting

The extent of vacation is not only based on the length of service in the current employment relationship. For the amount of vacation, certain previous employment periods listed in the Vacation Act must also be taken into account. This includes periods of service with the same employer from a previous employment relationship, periods of service in a different employment relationship, provided this lasted at least six months, as well as school and study periods. However, these previous employment periods are only taken into account up to a certain maximum amount of time.

Origin of vacation entitlement

First year of work: The entitlement to vacation arises in the first six months of the first year of work on an aliquot basis, i.e. in relation to the length of service. The full vacation entitlement arises after six months.
Second and subsequent working years: From the second working year onwards, the entire vacation starts at the beginning of the working year, i.e. with the first day of the second, third, etc. working year.

Vacation for part-time workers

The Holiday Act applies equally to full-time and part-time employees. The vacation entitlement is in relation to the work to be performed annually.

The statutory vacation entitlement must be converted from working days to actually worked company working days. The following then applies to the calculation of the vacation days: actual working days per week times vacation entitlement in weeks = number of vacation days.

This means: The vacation entitlement of part-time employees is the same as that of full-time employees, expressed in calendar weeks. On vacation days, part-time employees are due as much as they regularly work per working week.

Examples of this:

  • If you work regularly on one working day in the week, five days of annual leave result in five days of vacation (one working day per week times five weeks of vacation entitlement). The employee thus has a total of five calendar weeks free.
  • If you regularly work two working days a week, this results in ten vacation days per year (two working days per week times five weeks vacation entitlement). The employee can also take five calendar weeks off.
  • If you work 20 hours a week, divided over five days, you are entitled to 25 days of vacation per year. (five half working days per week times five weeks vacation entitlement). This employee can also take five calendar weeks off.

Vacation consumption

The specific vacation date and the duration of the vacation are to be agreed between the contracting parties. Basically, the vacation agreement must be made in such a way that the vacation can be used during the vacation year in which the entitlement arose.
Employees cannot be unilaterally "sent" on vacation by the employer. Conversely, starting vacation without authorization is a reason for dismissal.

At the employee's request, the vacation can also be taken on a daily basis.

Vacation consumption during the notice period

Vacation can in principle be used up during the notice period. As usual, however, a corresponding vacation agreement must be made with the employer.

Statute of limitations for vacation entitlement

The statutory vacation limitation period begins at the end of the vacation year in which the vacation was taken and ends two years later. After this limitation period has expired, the vacation can no longer be taken.

Example:

If the employment relationship begins on January 1, 2016, the limitation period for this vacation year begins on January 1, 2017 and ends on December 31, 2018.

Danger: This period is extended by the period of parental leave in the case of taking parental leave under the Maternity Protection Act or the Fathers Parental Leave Act.

Any unused, non-statute-barred remaining vacation will automatically be carried over to the next vacation year. A vacation taken in the next vacation year is always deducted from the oldest outstanding vacation entitlement.

Illness while on vacation

If the employee falls ill while on vacation, the days of sick leave falling on working days on which he or she was unable to work are not counted towards the amount of vacation, provided that the illness lasts longer than three calendar days.

The prerequisite for non-crediting is that the employee:

  • did not cause the illness willfully or through gross negligence,
  • immediately notifies the employer after a three-day illness, and
  • Provides evidence of illness when returning to work (medical certificate, confirmation from the health insurance company).

Holiday compensation and holiday allowance

If leave is still outstanding at the end of the employment relationship, the employee is entitled to compensation.

To calculate the vacation replacement benefit, the proportional vacation entitlement for the current vacation year must first be determined, with the vacation already consumed in the current vacation year being deducted from this proportional vacation entitlement. The result is to be rounded commercially.

Example:

  • The employment relationship began on February 1, 2014.
  • The current vacation year started on February 1, 2015.
  • The employer terminates the employment relationship on October 31, 2015. This means that 273 calendar days have elapsed in this holiday year (February 1 to October 31).
  • The employee consumed eight vacation days during this time.

The aliquot vacation entitlement is now calculated by multiplying the total annual vacation by the calendar days of the vacation year and then dividing by 365.

  • Annual leave = 30 days
  • Calendar days of the vacation year = 273
  • (30 x 273) / 365 = 22.43 working days proportional vacation
  • In order to determine the vacation replacement benefit, the vacation days already consumed are deducted:
  • 22.43 (working days proportional vacation) - eight (vacation days consumed) = 14.43 working days vacation compensation.

The remaining vacation days are to be financially compensated by the compensation payment. The basis for calculating the compensation for these vacation days is the vacation pay fictitiously due to the employee at the time of termination of the employment relationship.

Danger: Depending on whether the vacation entitlement is measured in working days or in working days, the fictitiously due vacation remuneration is to be calculated on the basis of working days or on the basis of working days.
Vacation remuneration received for vacation that is consumed too much is generally not refundable, except in the case of unjustified premature departure and dismissal through fault.

In the event of unjustified premature departure, there is no compensation for unused vacation.

For unused vacation from previous vacation years, compensation is due to the full extent of the outstanding vacation pay, provided the vacation entitlement has not yet expired.

Any form of vacation redemption in cash or through other financial benefits during the ongoing employment relationship is inadmissible and ineffective.

In the event of the employee's death, the heirs (the specific right of inheritance is decisive) are entitled to compensation in accordance with the inheritance quotas.

Vacation law and deviating agreements

The provisions of the vacation law are mandatory in favor of employees and cannot be repealed or restricted by an employment contract, collective agreement or works agreement. Only more favorable agreements for employees are permitted.

Special vacation regulations

With minor deviations, the Holiday Act applies to journalists, house carers, house helpers, domestic servants, actors and workers in agriculture and forestry.

The vacation right is regulated by special law for:

  • Workers in the construction industry (Construction Workers Vacation and Severance Pay Act),
  • Home workers (Home Work Act) and
  • Employment relationships with the federal government, states and municipalities.

Care leave

Forms of care leave

  • Care leave in the event of illness
  • Extended care leave in the event of illness
  • Care leave to care for a child
  • Care leave to accompany a sick child during hospitalization

The care leave is regulated in the Vacation Act (Section 16), but no vacation entitlement. Rather, it is a special statutory right to release from work for important reasons, for which the remuneration continues to be paid.

No agreement with the employer is required for taking care leave. If the eligibility requirements are met, the employer only needs to be informed that care leave is being taken and the fulfilled requirements must be proven. The employee is free to choose the type of proof of need for care (simple notification, medical certificate).

If necessary, the care leave can be taken on a daily basis, but also only on an hourly basis.

Attention: The unjustified use of the care leave is a reason for dismissal! In case of doubt, it is therefore advisable to thoroughly clarify whether the eligibility requirements are actually met.

Care leave in the event of illness

In principle, employees have a right to care leave of up to one week per working year and with continued payment of their wages.

The right to care leave exists if the employee is due to

  • the necessary care
  • one who lives in the same household
  • sick close relatives
  • proven

is prevented from performing at work.

If a sick child needs to be cared for, employees who do not live in the same household as the child are also entitled to care leave. This regulation also includes foster and adopted children who are ill.

Whether care is necessary can only be determined in individual cases after considering all the circumstances, such as the type and intensity of the illness, the age of the sick person and the family situation of the employee.

In any case, care by the employee will not be necessary if another suitable person is available to care for the sick close relative (e.g. other non-working persons who are suitable for care, such as grandparents or spouses or spouses). Spouse who is not gainfully employed) to ensure the provision of nursing staff.

The existence of an actual shared apartment (living and doing business together) is decisive for the existence of a joint household. The police report is not decisive.

Close relatives include:

  • Spouse
  • registered partner
  • Life companion and partner
  • directly related persons (parents, grandparents, children, grandchildren, etc.)
  • Adopted children and foster children
  • Biological children of the spouse or registered partner living in the same household.

Extended care leave in the event of illness

If a child falls ill again during the current working year, there is an entitlement to paid leave for a further week for necessary care under the following conditions:

  • The first week of care leave is completely used up.
  • The newly ill child (adoptive or foster child or biological child of the spouse or registered partner living in the same household) is under twelve years old.
  • According to other statutory provisions, collective bargaining norms or the employment contract, the employee is not entitled to continued remuneration in this case.

Care leave to care for a child

Furthermore, there is an entitlement to time off for up to one week per working year if the carer who takes care of the child continuously or regularly is absent for the following reasons:

  • death
  • Stay in a sanatorium and nursing home
  • Serving a custodial sentence as well as other detention based on an official order
  • Serious illness
  • Elimination of the common household with the previously caring person

In this case, too, it is imperative that the employee must care for the child and that the necessary care is incompatible with the performance of the work.

Whether the care is necessary can only be determined on a case-by-case basis after considering all the circumstances. Care by the employee will in any case not be necessary if another suitable person is available to take care of the children.

In principle, however, the employee cannot be expected to make lengthy attempts to place the children in a care facility or to take care of the provision of care personnel at his or her own expense.

Care leave to accompany a child during hospitalization

A right to care leave also exists in the case of accompanying a sick child (adoptive or foster child or a biological child living in the same household, children of the spouse, the registered partner or the partner) in the case of an inpatient stay in a sanatorium and nursing home, provided the child is under ten years old.

If it is necessary to be accompanied to the hospital for objective reasons, children over ten years of age can also be accompanied. For example, if a doctor's certificate confirms that attendance is necessary for the child's recovery.

Last updated: October 7, 2019