Forfeiture of vacation during illness - employer's duty to cooperate? Background:

Background:

In November 2018, the European Court of Justice (ECJ) ruled that the expiry of leave at the end of the calendar year is only possible if the employee was actually put in a position by the employer to take their paid leave. According to the ECJ, employers now have a duty to cooperate and must provide their employees with specific information, which must be provided in good time in the calendar year so that employees still have the opportunity to take their leave ( summarized by us here).

Current problem:

According to established case law, statutory vacation entitlements expire after 15 months in the event of continued incapacity to work. Whether the expiry can also occur if the employer has not fulfilled its duty to cooperate in the leave year in accordance with the principles set out above is still unclear. However, the Federal Labor Court (BAG) now has to decide on precisely this issue in two proceedings:

The plaintiff in one of the proceedings has been continuously unfit for work since 2017. She did not take 14 days of leave in 2017. In the other case, the plaintiff has been receiving a pension due to a full reduction in earning capacity since December 2014 and claimed that he was still entitled to 34 days of leave from 2014. In neither case was the employer informed of the expiry of the leave. In both cases, however, the leave could have been taken at least in part before the onset of the incapacity to work.

Both claims were dismissed by the lower courts. For the BAG, the decision as to whether leave expires after 15 months or at a later date depends on the interpretation of EU law. Therefore, the ECJ must now clarify whether EU law permits the forfeiture of leave entitlement after the expiry of the 15-month period or, if applicable, a longer period, even if the employer has not fulfilled its obligations to cooperate in the leave year, although the employee could have taken at least part of the leave in the leave year up to the time of the occurrence of the full reduction in earning capacity or incapacity to work. If it is assumed that the employer is obliged to cooperate in the respective leave year, the BAG also asked whether forfeiture at a later date is also excluded if the incapacity to work/reduced earning capacity persists.

Practical tip:

Until final clarification of the questions by the ECJ, we recommend that employers also fulfill their obligation to cooperate with employees who are on long-term sick leave: The employee who is unable to work should be asked to take the leave after the end of the incapacity for work until the end of the year. The employee must be informed of the date on which the leave will otherwise expire. The request and notification should be made again at the beginning of the year if leave has been carried over to the first quarter of the following year. After the end of the period of incapacity for work, the employee should be informed again about the leave and the applicable expiry periods.