The suitcase is packed, the holiday is booked, and then you come down with the flu. Or the other way round: in the middle of your holiday, an illness brings everything to a standstill. Both scenarios can happen, and both have consequences under employment law that many employees are unaware of.
Sick days do not count as holiday
Section 9 of the Federal Annual Leave Act stipulates that days of annual leave during which an employee is unfit for work shall not be deducted from their annual leave entitlement. The leave is therefore not lost. However, this is subject to the provision of a medical certificate confirming the employee’s incapacity for work. It is important to note that not every illness automatically renders a person unfit for work. The decisive factor is whether the illness specifically prevents the employee from carrying out their particular job.
Special considerations in the event of illness whilst abroad
The electronic procedure for certifying incapacity for work (eAU), which has been in place for several years, simplifies many aspects of the process: doctors’ surgeries send the data directly to health insurance funds, and employers retrieve it from there. Employees no longer need to submit a paper certificate to their employer.
However, this exemption does not apply to illnesses sustained abroad. Anyone who falls ill whilst on holiday in Spain, Italy or elsewhere outside Germany must take the initiative themselves in contacting their employer. In practical terms, this means:
- Inform your employer as soon as possible, preferably by telephone or email
- Please state the expected duration of the illness
- State the exact address of your current location
- Obtain a medical certificate from your local GP
The employer must bear the resulting communication costs in accordance with Section 5(2) of the Continued Remuneration Act (EFZG). In the case of a return flight or journey, the following also applies: the employer and the health insurance fund must be informed immediately of the return to Germany.
Continued payment of wages instead of holiday pay
Anyone who falls ill whilst on holiday and is unable to work is not entitled to holiday pay for those days, but is entitled to continued payment of remuneration in the event of illness under Section 3 of the EFZG. The employer must either refund any holiday pay already paid for those days or set it off against the continued payment of remuneration.
The lost days of annual leave will be granted retrospectively
Holidays missed due to illness are not lost. The employer is obliged to grant the holiday at a later date. However, employees must not simply add the missed days to their approved holiday entitlement without authorisation. Anyone who has recovered by the last day of their approved holiday must report for work on time.
What happens if you fall ill before your holiday begins?
Anyone who is already unwell before their holiday begins is generally still allowed to travel, provided that the trip does not hinder their recovery. In such cases, employees often obtain written confirmation from their doctor that the planned trip will not interfere with their recovery. It is advisable to be open and honest with your employer in this regard to avoid any mistrust.
People on long-term sick leave and the expiry of holiday entitlement
Anyone who is off sick for the entire calendar year and is therefore unable to take annual leave does not lose their entitlement to annual leave straight away. According to the case law of the Federal Labour Court and a ruling by the European Court of Justice dated 22 September 2022, the entitlement only lapses 15 months after the end of the annual leave year.
Anyone finding themselves in one of these situations should check the exact deadlines and obligations in their specific case. Seeking advice on employment law will help ensure that you do not forfeit any entitlements.
Source: Haufe: Law
This article was created with the help of AI and has been editorially reviewed.
