The most important facts about the Federal Leave Act explained

The Federal Leave Act also applies to interns, trainees and working students, but not to civil servants and soldiers.

You can find the original text of the law here.

Minimum leave entitlement

The BUrlG is impressively clear in its definition of the minimum vacation entitlement: 24 working days. Working days are all days except Sundays and public holidays, which therefore includes Saturdays.

In practice, a calculation of the vacation entitlement depending on the length of the working week has developed, which leads to the fact that all female employees are ultimately entitled to 4 weeks of vacation per year. Thus, 24 vacation days are usually considered the minimum entitlement only for female employees who work 6 days per week. However, since most of them only work 5 days per week, 20 days are assumed for them. The situation is similar in most other countries in Europe.

Vacation entitlement for part-time or marginal employment

Those who work less than 5 days per week usually have correspondingly less vacation entitlement. For each non-working day per week, 4 days are deducted from the annual entitlement, always with the aim of achieving 4 weeks of vacation per year. This results in:

• 4-day week: 16 vacation days
• 3-day week: 12 vacation days
• 2-day week: 8 vacation days
• 1-day week: 4 vacation days

Again, these are only customary values derived from the interpretation of the Federal Vacation Act and may be adjusted by contracts and other laws.

Incidentally, if part-time employees work fewer hours per day than full-time employees, this does not reduce their vacation entitlement. Their vacation days are simply shorter as a result, which has a significance for the working time account. However, the number of days remains the same.

Vacation entitlement for shift work

If shift work extends to Sundays and public holidays, these are considered working days. Vacation days must also be used for these. Those who also work night shifts must use two vacation days for such days. This naturally puts shift workers at a disadvantage, which must be compensated for by a corresponding increase in vacation entitlement.

Fractions may occur when calculating vacation days. In this regard, §5 of the BUrlG stipulates: "Fractions of vacation days that result in at least half a day shall be rounded up to full vacation days." Furthermore, case law has also defined fractions of vacation days that result in less than half a day as a valid entitlement that must either be paid out or rounded up.

Vacation entitlement for long-term sick

If one of your employees is sick for months, she may not be able to use her vacation days at all. But is she entitled to it at all?

Unfortunately, case law does not provide any clear guidance in this regard. Both the BAG and the ECJ have issued contradictory rulings several times in the past. Currently (as of 2012), a carryover period of 15 months applies from the end of the calendar year in which the vacation entitlement arose. In other words, if your employee was consistently on sick leave in 2022, she can take this leave until the end of March 2024 before it expires.

Vacation entitlement during the probationary period (waiting period)

The Minimum Leave Act defines a waiting period of 6 months before new female employees acquire the full annual leave entitlement. Until then, a pro rata vacation entitlement of 1/12 of the annual entitlement per month worked applies. However, a vacation block can be agreed in the employment contract for the probationary period.

Vacation entitlement in the event of a change of employer (double entitlement)

If you hire an employee who has already taken leave with her previous employee in the same calendar year, you no longer have to grant this leave. Only the portion that results from the working hours in your company is relevant for you.

At best, your new employee should bring a certificate from her previous employer showing how many vacation days she has already been granted in relation to her weekly working days.

If an employee leaves you, you have the obligation to issue such a certificate to her.

Vacation pay or vacation allowance?

Vacation pay is the continued payment of wages during vacation.

Vacation pay is an additional benefit that you grant voluntarily or on the basis of contractual obligations. How much it is and when you pay it is up to you or the contractual basis. It is essential that you make the payment subject to the so-called voluntary clause. If you do not do this, your employees will have a claim after the third payment.

Vacation planning - What to consider?

Observe the wishes of the employees

Many companies base their vacation planning on the wishes of their employees, partly because it is a cost-free way of keeping satisfaction levels high. But sometimes, of course, operational requirements such as the peak season or a strong order situation stand in the way.

Such operational reasons, as well as the vacation requests of other employees "who deserve priority from a social point of view," may be justification for you to deny vacation requests.

You can evaluate these social aspects based on age, length of service, age and number of children and their compulsory schooling, leave taken by other family members or leave taken in previous years.

Order company vacations

Although normally the wishes of the employees must be paramount when planning vacations, you may order company vacations. This means that the company basically shuts down its operations because essential parts of the business are not active. This is usually done by medical practices or manufacturing companies.

By the way, you may only plan 60% of the vacation entitlements - the remaining 40% must be at the employees' free disposal.

Carry over or forfeit vacation entitlement

According to the Minimum Leave Act, leave may be carried over to the next calendar year only for urgent operational reasons or reasons relating to the employee, and there it must be granted and used in the first three months.

However, there are also different interpretations of case law that you should take into account: Since a ruling by the BAG in 2019, vacation entitlement only expires if you have previously informed your employees about their specific claims and the expiration periods. The statutory limitation period of 3 years only begins at the end of the year in which you informed them.

What is allowed during vacation

Illness during vacation

Of course, your employees can also fall ill during their vacation. In this case, the German Federal Leave Act stipulates that all days that they can prove with a medical certificate do not count as vacation days and are therefore paid like all other sick days.

In contrast to sick days during normal employment, however, proof must be provided from the first day of illness. However, your employees can wait until the first day of their return to work to inform you.

What happens to the vacation days then? They are considered unused and therefore remain in the vacation account for later use. In this case, it is worthwhile to have a practical solution for vacation planning at hand, with which you do not lose the overview.

Bringing female employees back from vacation

You cannot do that without further ado. Your employees are not obligated to be available or to handle organizational problems of the company during the vacation.

However, if in the short term the continued existence of the business or general safety depends on it, you may bring your employees back to work.

Your female employees work during the vacation?

This is not allowed under the Federal Vacation Act. During their vacation, they may not engage in gainful employment for you or for anyone else. You cannot reduce the vacation pay, but you can claim injunctive relief. In extreme cases, you can even give notice of termination.

Vacation entitlement at the end of employment

What happens to vacation entitlements upon termination?

If you give notice and release the employee from work, you must explicitly state (preferably in writing) whether the leave entitlement will be credited with the release. Then the time of the leave of absence is in fact vacation.

If you don't, the claim will remain and, at worst, you will have to pay it out at the end of the employment contract.

Can I pay out (settle) vacation?

As a rule, you cannot pay out vacation. The only exception is if the employment relationship ends and your employee no longer has time to take the vacation. In this case, you must pay out the average amount earned per day during the last 13 weeks for each day of leave.

Can I reclaim vacation?

You do not have many options for reclaiming vacation (in the monetary sense, since your employees cannot return the days). Basically, you can only reclaim vacation if someone has fraudulently obtained vacation days to which the person is not entitled. Of course, you have to be able to prove this.

Unfortunately, if someone leaves the company during the year and has already taken more vacation days than the person is entitled to for that time, you have no way to claim.

Special cases

Half vacations, bridge days, Christmas Eve, New Year's Eve

The Federal Vacation Act only recognizes full vacation days. Even if, in practice, half or full vacation days are occasionally granted under collective agreements, for example on Christmas Eve or New Year's Eve, these are completely normal working days.

If you grant your employees an additional vacation day on these days at your own discretion, do this also under the voluntary condition, otherwise a claim can be derived from this after the third time.

Apart from that, no one has a right to half days off or to vacation on bridge days, Christmas Eve or New Year's Eve.

Vacation entitlement for minors

For minors, the Youth Employment Protection Act (JArbSchG) regulates vacation entitlements that go beyond the requirements of the BUrlG. Accordingly, minors who have not yet taken leave at the beginning of the year...

• 16 years old: 30 days,
• 17 years old: 27 days,
• 18 years old: 25 days.

These figures also apply with reference to a 6-day week and are reduced accordingly for shorter working weeks.

Vacation entitlement for severely disabled persons

For female employees with a degree of disability (GdB) of at least 50%, an additional week of vacation applies according to §208 SGB IX, which is added to the minimum entitlement from the BUrlG.

Time off for personal reasons (special leave)

Such a leave of absence is not a vacation in the narrower sense and is not regulated by the Federal Leave Act. It arises from §616 of the German Civil Code (BGB), which you can, however, exclude by employment contract or collective agreement, which means that you grant your employee the absence, but no continued payment of wages for this day.

A leave of absence for personal reasons may be justified by, for example:

• own wedding
• the birth of your own child
• a necessary visit to the doctor
• a court summons
• a death or the funeral of close relatives
• the care of sick children or relatives

You can also use special leave to reward your female employees, for example, for service anniversaries or outstanding performance.