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Christine Wahlig
Attorney at law
Editorial Management
Alice Tanke
Marketing Manager
The labor court of Bonn (07.07.2021 – 2 Ca 504/21) has clarified that days of leave are not additionally granted due to a Coronavirus infection during leave. In the present case, the employee was on leave for a fortnight. In the meantime, she had to go into quarantine due to an official order. The employee had become infected with the Coronavirus. She did not submit a certificate of incapacity for work for this period to her employer. Nevertheless, she demanded her employer to grant five additional days of leave.
In the event, that an employee becomes ill during their leave, German law provides that the days of incapacity for work, as proven by a medical certificate, shall not be credited towards the annual leave entitlement. This means, if an employee becomes ill during their entire one-week leave, the employer must again grant another week of leave. The employee is not on leave, but sick. However, this requires that the incapacity for work is confirmed by a medical certificate which is submitted to the employer.
In the case at hand, the employee claimed the additional granting of leave without reason. As said, only days of incapacity for work proven by a medical certificate are not counted for annual leave entitlement and must be additionally granted. The employee did not submit such medical certificate, but only the official quarantine order. However, this does not replace the medical certificate. The decision on the incapacity for work is only up to the attending doctor. Moreover, a Coronavirus infection does not directly and necessarily lead to incapacity for work.
Therefore, the questions of quarantine and incapacity for work must be clearly distinguished. It is important to assess the exact status of an employee for all pay and leave issues. The most important aspect is whether the employee submits a medical certificate of incapacity for work. Spending their leave in quarantine certainly is a nuisance for the employee, however other than for sickness the law does not provide that leave has to be granted again.
Questions concerning continued payment of remuneration and additional granting of leave particularly involve the question of incapacity for work. Even in the case of an infection with the Coronavirus, it is only a question of whether the employee is actually incapable of working. A quarantine order itself has no effect on the employment relationship and only entitles the employee to a payment of compensation for loss of earnings. Employers should therefore check the period for which a medical certificate of incapacity of work is provided.
