How do paid vacations work
13 examples of special paid leave in the event of death, marriage or relocation
- When do we speak of special leave?
- When is there an entitlement to special paid leave?
- The employee's obligation to provide evidence
- Examples of special paid leave
- Examples of unpaid special leave
- Special case sabbatical year / sabbatical
1. When do we speak of special leave?
Many employees associate special leave with exemption from their duty to work while continuing to pay their wages. So work less with the same pay and thus an exception to the rule “no work, no money”. The phrase “special leave” also expresses the fact that this is not a regular entitlement to leave under the Federal Leave Act. This type of special leave is not about vacation leave according to §§ 1, 11 BUrlG.
Therefore, the annual leave cannot be reduced by the days of the special leave, but continue to exist in full regardless of this.
By granting special leave, the employee should be given the opportunity to cope with special events or to cope with extraordinary occasions.
In the case of special leave, a distinction must be made between two situations:
- possibility of the employee to Refusal to work.
- pay During this time.
Regardless of the payment, there is the possibility of staying away from work if the employee is unable to do so due to exceptional circumstances unreasonable is to work. In this case, it is always necessary to weigh the interests of the employee against the interests of the employer. Instead of special leave, from exemption spoken. The employer has no way of excluding this right of the employee. A distinction must be made between this and the question of payment during this time, which depends on various factors.
2. When is there an entitlement to paid special leave?
Temporary hindrance is given if the duration of the hindrance is not significant in relation to the duration of the employment relationship. In legal German, the duration of the hindrance is “not significant”. Section 616 BGB does not regulate how many working days there is a right to special leave. The paragraph cannot provide this level of precision, as the length of the special leave varies depending on the type of leave. That is why the law deliberately works with a so-called indefinite legal term "temporarily prevented" in order to take the respective individual case into account.
Section 616 of the German Civil Code (BGB) is a so-called fallback standard and only applies if the employee is not already entitled to paid special leave / paid leave for one of the following reasons:
- special law
- Regulation in the employment contract
- Regulation in a company agreement applicable to him
- collective agreement regulation
Paid special leave due to work in the works council is granted in accordance with Section 37 (2) of the Works Constitution Act (BetrVG) and not in accordance with Section 616 of the German Civil Code (BGB). This entitlement also includes all advanced training events required for works council work.
The employment contract may regulate when and to what extent the employee is entitled to special paid leave. It is also important to clarify whether the employment contract excludes certain types of special leave or reduces the length of the special leave. In these cases, the lawyer then has to ask whether this restriction is permissible or not. Because not every contractual regulation is effective.
If there is no clause on special leave in the employment contract, this may be regulated by a works agreement. If the employment relationship is subject to a collective agreement, it must be checked whether this regulates the right to special leave. For example, § 29 TVöD (collective agreement of the public service) determines Public service workersfor which cases and for what period of time there is an entitlement to special leave. Collective agreements can also regulate the duration of the special leave so that, for example, one day less special leave is granted than the case law of the labor courts.
If no collective agreement regulations apply, these can nonetheless be used as a guide for an initial assessment. This is useful if there is either no relevant case law or there are indications that the collective bargaining regulation is more up-to-date than an outdated case law.
For Federal officials the special leave is based on the Special Leave Ordinance (SUrlV). Sections 5-22 regulate all entitlements to special leave, including the duration of paid leave.
It is important to know the current jurisprudence of the labor courts on the subject of special leave / exemption, in particular that of the Federal Labor Court (BAG) in Erfurt. This assumes that a maximum of only a few working days are covered by § 616 BGB as special leave.
The length of the special leave depends on what the reason for the prevention is in the specific case. So there are reasons for prevention that only entitle you to be absent for a few hours. And there are reasons to be prevented that allow an absence of several days.
3. The employee's obligation to provide evidence
Every employee must inform his employer that he needs special leave. The employer can demand that the employee provide him with proof of the reason for the special leave. If, for example, special leave is required because the employee is getting married, a corresponding letter from the registry office must be submitted. The date of the wedding and the personal details of the bride and groom must be evident from this letter.
4. Examples of special paid leave
This list is neither exhaustive nor permanent. The focus of the presentation is on case groups of paid special leave in accordance with Section 616 of the German Civil Code (BGB). Only in exceptional cases is express reference made to other regulations.
Missing from one those in need of care Child care option because, for example, kindergarten or school are closed or the child becomes ill and other care is excluded, employees can stay at home under certain conditions and continue to pay their normal salary.
The decisive factor here is whether the child actually needs to be cared for on a long-term basis and whether other reasonable care options arise. In this respect, the age of the child is particularly relevant. If the child is 12 years or older, the need for care is slightly higher. But here too, employees can stay away from work in the event of an unforeseen illness or need for care, without losing their entitlement to remuneration, if other care or care is not appropriate or feasible.
The circumstances of the individual case are always decisive. The reason for the care or, in the case of an illness, the type and severity as well as the care alternatives (reference person or stranger, etc.) are relevant.
Visit to the doctor / operation
A visit to the doctor justifies special leave within the meaning of Section 616 BGB if the employee cannot influence the appointment. So if his working hours and the opening times of the practice overlap, for example, and the doctor to be consulted is currently not offering an evening consultation for employees or the employee would have to wait an unreasonably long time for an appointment in the evening consultation in a specific individual case.
If you visit a doctor outside of core working hours, but during flexitime, you are not entitled to special leave. There is also no entitlement to have the time of the doctor's visit credited to the time account. This visit to the doctor therefore has no consequences under labor law. It is a purely private matter.
An operation that is not required to perform the work does not entitle you to paid special leave under Section 616 of the German Civil Code (BGB). Here, unpaid special leave can only be agreed with the employer in an individual contract. Such a case is basically the case with cosmetic surgery. However, this also applies to an operation that eliminates myopia if it does not impair work performance. Such a judgment of the labor court in Frankfurt from May 23, 2000, Az. 4 Ca 8647/99.
Funeral / death
If a close relative dies, you are entitled to special leave. Close relatives are the spouse / partner / life partner, own child / adoptive child / stepchild / foster children, parents as well as in-laws and siblings. Whether only one day of special leave is possible in accordance with Section 616 of the German Civil Code (BGB) to attend the funeral or up to three days depends on the one hand on the relationship between the deceased and the employee. On the other hand, a distinction is made as to whether he has lived in his household or not.
The right to special leave is three working days if the spouse / partner / life partner has died.
All other close relatives, provided they have lived in his household, are entitled to two working days of special leave.
This means that the employee is only entitled to special leave of one day for all other close relatives.
Section 29 TVöD, on the other hand, makes no such distinctions and grants special paid leave of two working days for a narrower group of close relatives.
There is a right to special leave according to § 629 BGB in the event that the current employment relationship has already been terminated.
Fulfillment of civic duties
Anyone who, as an honorary judge or lay judge, cannot regularly pursue his normal work as an employee, has the right to special leave for these periods of absence with continued payment of his salary.
The same applies to employees who do voluntary work in disaster control or in the voluntary fire brigade. Special legal regulations apply here, so that the standard of Section 616 of the German Civil Code (BGB) cannot be used as the basis for claims.
Rather, the following can be considered as the basis for claims:
- Section 9 (2) of the Disaster Protection Act or Section 21 of the Civil Protection Act as well as Section 3 of the THW-HelfRG for THW operations
- State regulations when working in voluntary fire brigades. Depending on the federal state, the employer receives the remuneration paid by the fire brigade agency on request. For example in Hesse and even beyond that in North Rhine-Westphalia.
In this respect, entitlements to paid special leave for participation in necessary further training are also possible. Depending on the federal state, you may be entitled to paid special leave of up to 12 working days.
Illness of relatives
In the event of a child becoming ill, Section 616 of the German Civil Code (BGB) gives the employee a legal right to paid time off under the following conditions:
- Disease of the child that requires care
- care and support cannot be ensured by other e.g. relatives
- As a rule, the sick child must not be older than 8 years (with older children, the demands on the illness and thus on the need for care increase)
- The child lives in the employee's household
- Medical certificate as proof that the child needs care
If these requirements are met, the employee is entitled to paid leave of absence for a period of up to 5 working days in accordance with Section 616 of the German Civil Code (BGB) in order to care for his sick child.
Working parents can basically decide for themselves which of them will take care of the sick child. In making their decision, however, they have to take into account the concerns of the respective employer.
If the child falls ill while they are on holiday together and the employee takes care of them in whole or in part during this time, they are neither entitled to special leave nor to an extension of their leave.
In all other cases of the illness of close relatives, it depends on the individual case. I.e. who is sick and what degree of severity of the disease is.
Go to the authority
Special leave is given if an authority has invited the employee to an appointment, e.g. for a hearing. If, on the other hand, the employee only wants to extend his ID and can do so within the opening times of the authority, then there is no entitlement to paid special leave.
A right to paid special leave is also given if a believing employee briefly leaves his job in order to be able to pray in peace. The prerequisite in this case is that, for religious reasons, the prayer must take place at this point in time and not after work or before work begins. It is also important that leaving the workplace has been agreed with the employer beforehand.
birth of a child
Unless there is a specific regulation - e.g. an employment or collective bargaining agreement or a works agreement - a distinction is still made as to whether the birth of a legitimate or illegitimate child is involved. Only in the event that the father wants to be present at the birth of a legitimate child, he is entitled to one working day of special leave.
Otherwise, it is essential to clarify with the employer in advance that the father will receive unpaid special leave for the birth of his illegitimate child.
In the case of the birth of an illegitimate child, the right to special leave according to Section 616 of the German Civil Code (BGB) is excluded.
The Berlin Administrative Court assumed a special regulation for an official. A detective inspector in Berlin was given a day of special leave to attend the birth of his illegitimate child. The Berlin administrative court saw the catch-all offense "other important reason" in the relevant special leave regulation as the basis for a claim, judgment of the Berlin administrative court of 02.26.2014, Az. VG 7 K 158.12.
If an employee is summoned to a court hearing as a party or a witness, he is entitled to special leave. The amount of time depends on whether the court is nearby or whether the employee has to travel to another federal state. The employee may even have to arrive one day in advance in order to attend the early court appointment.
There is only a right to paid special leave if there is an emergency and there is a need for immediate action. This is the case, for example, in the event of a water pipe burst.
Anyone wishing to get married is entitled to paid special leave of one working day. All other participants in a wedding, on the other hand, are not entitled to special paid leave.
Natural event / adverse weather conditions
In principle, there is no entitlement to special leave in either case. Exceptions are possible if the employee's house is affected by a flood, for example, and he has to deal with his own affairs first. Or the natural event or adverse weather conditions affect his physical or mental state.
Whether you are entitled to one day of paid special leave in accordance with Section 616 of the German Civil Code (BGB) depends on the individual case. Such a claim will probably have to be affirmed if the move is necessary for business or operational reasons.
5. Examples of unpaid special leave
Long-term illness of the child
If care is required for more than 5 days, the employee is entitled to unpaid leave of absence after the 5th working day according to Section 45 of the Social Security Code V (SGB V), if
- a medical certificate confirms that the employee must be absent from work
- the sick child is under 12 years old
- For a married or cohabiting couple, the leave of absence in a calendar year does not exceed 10 working days per child or 20 working days for a single parent
- the employee has not yet exhausted his maximum number of unpaid, leave-off working days per calendar year. That means 25 working days / employee for a couple and 50 working days for single parents, regardless of how many children live in the family.
A terminally ill child is entitled to unpaid leave regardless of age.
During the unpaid leave of absence, the statutory health insurance pays sick pay.
A grandparent can also assert a right to unpaid leave of absence for the grandchild.
As already mentioned above, children are considered to be their own children, stepchildren, foster children and adopted children who live in the family.
Attending the child's graduation ceremony
Regardless of which school, apprenticeship or degree the child has completed. In all of these cases the employee can only ask the employer for special leave. He is neither entitled to this special leave nor to its remuneration.
Attending a family celebration
If it is neither a wedding nor a funeral of a close relative, there is no entitlement to special leave here either. This means that the employee must agree on unpaid special leave with his employer.
Adverse traffic conditions
Here, too, there is no entitlement to special leave and therefore no entitlement to remuneration in the event of time off.
6. Special case of sabbatical year / sabbatical
The sabbatical year, commonly known as "sabbatical", is a leave of absence during which the employee will continue to work for his company in the future.
The sabbatical was originally a work model for a longer special leave that an employee asked his employer for for a variety of reasons. The special leave ranges from several months to a year. During this time, the employee generally continues to receive monthly wages, which he saves on a long-term account through preparatory work or follow-up work.
The sabbatical now also serves to relieve the company. Companies whose order situation is temporarily critical can release employees from work for a defined period of time. But even with sick employees, such a time off can be a sensible alternative for both sides. This saves the company costs, as the agreed remuneration is usually lower during the leave of absence. At the same time, good employees / specialists are retained.
This leave of absence can also be used in other times of crisis for the employee. Employees may be interested in looking after their family, a family member who needs to be cared for, or building a house for a certain period of time. But the sabbatical is also an interesting option for employees with wanderlust or a thirst for further training.
If there is no entitlement to a sabbatical under labor law, such a sabbatical must be agreed.
The following must be observed / regulated here:
- Written form of the agreement
- Define the model of exemption and regulate the corresponding content:
- 1st model: Saving working time credit
- 2nd model: voluntary wage waiver
- 3rd model: conversion to part-time employment
- Duration of exemption
- Amount of remuneration for this period
- Company pension scheme
- Vacation entitlement
- Christmas bonuses paid voluntarily and other voluntary special benefits
- The same task and position of the employee after his return from the special leave
- A distinction must be made between time off (without pay) and special leave with continued payment of wages or salaries.
- If it is unreasonable for the employee to perform his work due to extraordinary circumstances, he can refuse to do so and stay away from work.
- Paid special leave is given above all if the work cannot be performed through no fault of its own, temporarily and for personal reasons.
- The employee must comply with his obligation to notify and, if necessary, provide evidence to his employer. He must therefore inform the employer in good time that special leave is being taken and the reason for the absence.
- If necessary, the reason for the impediment must be proven to the employer.
- If there is no entitlement to paid special leave, the employee must agree with his employer that and for how long he will be given unpaid leave.
- Special regulations apply to civil servants and employees in the public sector. These are based on the Special Leave Ordinance (SUrlV) for civil servants or the collective agreement for the public service (TVöD).
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Christina Gehrig works as a lawyer specializing in labor law in the Hasselbach law firm with offices in Cologne, Bonn and Frankfurt am Main. She advises employers, employees, executives and works councils on questions about working hours and wages and salaries.
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