In its recent press release of December 20, 2022, the Federal Labor Court ruled that the entitlement to statutory minimum vacation from a working year in which an employee was prevented from taking their vacation due to health reasons does not normally automatically expire after a carry-over period of 15 months. However, this provision only applies under the condition that the employer has given the employee the opportunity to take the vacation in a timely manner. This interpretation is based on the provisions of Section 7 (1) and (3) of the Federal Vacation Act (BUrlG).
The plaintiff, who is recognized as having a severe disability, works as a cargo driver in the ground handling services department for the defendant airport company. Due to his total incapacity for work due to health reasons, he was unable to work from December 2014 until at least August 2019 and thus was unable to take vacation. He claims that he is still entitled to remaining vacation time from 2014, which has not expired because the defendant failed to fulfill its obligations to grant and use the vacation time.
The lower courts dismissed the action, but the plaintiff's appeal was partially successful with regard to the remaining vacation time from 2014. Contrary to the defendant's view, the plaintiff's unused vacation time in 2014 did not expire solely due to his health restrictions.
Normally, vacation entitlements expire at the end of the calendar year or after a permitted carry-over period if the employer has previously requested the employee to take vacation and the employee nevertheless voluntarily does not take it. However, there are exceptions, particularly if the employee was unable to take vacation due to health reasons.
Previously, statutory vacation entitlements in such cases automatically expired on March 31 of the second following year ("15-month period"). However, this regulation was further developed in accordance with the European Court of Justice's decision of September 22, 2022 (- C-518/20 and C-727/20 – [Fraport]).
Accordingly, the vacation entitlement will continue to expire after the 15-month period if the employee was prevented from taking their vacation due to health reasons from the beginning of the vacation year until March 31 of the second calendar year following the vacation year. In such a case, it is irrelevant whether the employer has fulfilled its obligations, as these could not contribute to the use of the vacation.
However, the situation is different if, as in the present case, the employee actually worked during the vacation year before becoming unfit for work due to health reasons. In such cases, the employer must generally have given the employee the opportunity to take their vacation in a timely manner before the onset of incapacity to work.
The remaining vacation entitlement for 2014, which comprised 24 working days, could therefore not expire on March 31, 2016, solely due to the plaintiff's health problems. The remaining vacation entitlement remained valid because the defendant had failed to fulfill its obligations until December 1, 2014, even though it would have been able to do so.
The judgment of the Federal Labor Court of December 20, 2022 – file number: 9 AZR 245/19 – concerns the appeal by the Hessian State Labor Court, judgment of March 7, 2019 – file number: 9 Sa 145/17.
