What is a vacation request 1

Vacation rights, vacation entitlement and minimum vacation (BUrlG)

20 days off are the minimum for employees

Dr. Britta Beate Schön
Legal Expert As of April 01, 2019

Dr. Britta Beate Schön

Britta Beate Schön is responsible for all legal issues at Finanztip. The doctor of law and attorney was head of the legal department at financial service providers such as Telis Finanz AG and Interhyp. Before that, she taught and researched in Japan as a DAAD junior professor for German and European law. She completed her studies in Münster, Geneva, Regensburg and Leipzig. You can reach the author at britta.schoe[email protected]

  • Employees have at least 20 days of paid vacation for a five-day week. More than 30 vacation days are more common.
  • The full vacation entitlement arises for the first time after six months (waiting period).
  • Employers are generally not allowed to pay out vacation days, not even for mini-jobs.
  • Vacation days that employees have not taken by the end of the year do not automatically expire on December 31. Employers must inform their employees in good time if they have not yet taken all vacation days.
  • As an exception, remaining vacation days can be carried over to the following year - up to March 31.
  • Apply for a vacation in good time and it is best to coordinate with your colleagues. You can use our sample letter for the application.

To the vacation request

  • Relax on vacation. Avoid emails and phone calls. You don't always have to be available.
  • It is best to use all vacation days until the end of the year.
  • If you cannot take some vacation days in the calendar year, have the remaining vacation time carried over to the new year.
  • If you have allowed vacation days to expire in the past three years, you can ask your employer to credit your vacation account with these days again. You can also use our sample application for this.

Download sample application

Workers have vacations so they can relax and stay healthy. In contrast to the self-employed or freelance workers, vacation for employees means one Time out without financial lossbecause the employer continues to pay the salary during the vacation. According to the 2016 Working Time Monitor, every employee in Germany has an average 27 days Vacation. How many vacation days you are entitled to can be found in your collective agreement or employment contract.

What is the minimum number of days of vacation?

The statutory vacation entitlement comprises 24 paid working days per year. However, the Federal Holiday Act is based on a six-day week (Section 3 BUrlG), which is rather unusual today.

20 days minimum vacation - If the employee only works five days a week, as usual, he is entitled to at least 20 paid vacation days per year. Severely disabled employees have an additional holiday of five days (Section 208 (1) SGB IX), i.e. a total of 25 days for full-time work.

30 days vacation is usual - In many collective agreements or employment contracts, employers grant 30 days of vacation.

Special leave - In some employment contracts there are regulations on special leave for special occasions, for example at your own wedding or the birth of a child. However, employees are only entitled to this if it is provided for in the collective agreement or in the employment contract. Sometimes there is also a company agreement.

Vacation entitlement during parental leave

In principle, vacation entitlements also arise during parental leave. However, the employer may reduce it - by one twelfth for every full month of parental leave (Section 17 (1) BEEG). This regulation does not violate European law (BAG, judgment of March 19, 2019, Az. 9 AZR 362/18). If the employer wants to cut, he must inform the employee of this, but not necessarily when they start parental leave.

Vacation entitlement during a sabbatical year

Anyone who takes a longer unpaid special leave or a so-called sabbatical whose employment relationship is suspended. Therefore, the employee does not acquire a right to minimum vacation in the time in which he is not working (BAG, judgment of March 19, 2019, Az. 9 AZR 315/17).

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How much vacation do I have with a mini-job or part-time?

Those who work part-time can be entitled to the same vacation leave as full-time employees. To do this, however, he has to work every working day of the week. If he works fewer days, the vacation is reduced accordingly. So it doesn't depend on the hours someone works part-time. Those who work 20 hours a week do not automatically have half as many vacation days as a full-time employee.

Example 1: A clerk works 20 hours, three days a week. The full-time employees have 30 days of vacation for a five-day week. The part-time colleague therefore has an annual vacation entitlement of 18 paid working days (30 days × 3 days ÷ 5 = 18 days).

Example 2: A clerk works 20 hours, five days a week. He has the same annual vacation entitlement as full-time employees, namely 30 days.

The vacation entitlement of part-time workers is mathematically only worth fewer hours of work. The vacation law does not recognize half days of vacation and also no vacation hours. Even mini jobbers can apply for leave. For them it is also important how many days they work in the week.

When am I entitled to vacation?

According to the Federal Holiday Act (BUrlG), full vacation entitlement arises for the first time after six months since the start of the employment relationship (Section 4 BUrlG). This often results in the employer imposing a six-month holiday ban during the probationary period at the start of the employment relationship or employees mistakenly assuming that they are initially not allowed to take holiday.

This can lead to new employees accumulating vacation entitlements and then piling up in the second half of the year. That is why it is now common in many companies for employees to be able to apply for leave during their probationary period. However, the employer does not have to approve it. However, new colleagues already acquire vacation entitlement - one twelfth of the annual vacation for each month (Section 5 BUrlG).

How do I apply for leave?

Most employers offer ready-made forms to fill out for vacation requests or use special HR management programs that you can use to request and manage your vacation. If you have to write your vacation request yourself, you can use our vacation request template.

Apply for a sample letter of leave

Here you can see ourSample letter download for the leave request:

For download

If the waiting period of six months has been met, the employer must generally also approve your vacation request. Under no circumstances are you allowed to take a leave of absence yourself, for example because the boss has left your application. Anyone who takes a vacation that has not been approved by the employer on their own initiative risks termination without notice (BAG, judgment of January 22, 1998, Az. 2 ABR 19/97).

Vacation lock - In rare cases, the employer may impose a vacation ban. This is only possible for urgent operational reasons (Section 7 (1) BurlG). Examples of this are waves of illness or company holidays, but also a special order situation.

Do I get vacation pay?

Put simply, those who are on vacation continue to receive their salary. It is also called Vacation pay. With Vacation pay but it means something else - in addition to the normal wage, the employer pays an amount that you can spend on vacation, for example. This is a special achievement by the employer, comparable to the Christmas bonus. It is often in the collective bargaining agreement or employment contract, and the employer sometimes pays vacation pay on the basis of a works agreement. However, the employee is not entitled to this.

Can I have my vacation paid out to me?

You have to take the vacation days and are usually not allowed to have them paid out to you (Section 7 (4) BUrlG). However, you can no longer take part or all of your vacation, for example because you quit your job yourself and are still training a successor have to, the employer has to pay you the vacation not taken. This is also called Vacation compensation.

According to the Federal Holiday Act, the decisive factor is the average earnings per working day that you as an employee received in the last 13 weeks before leaving (Section 11 BUrlG).

Calculation formula for a 5-day week: total earnings for the last 13 weeks / 65 days = wage entitlement per day in euros. This euro amount is then multiplied by the number of vacation days.

Example: You earn 3,000 euros gross per month, i.e. 9,000 euros gross in the last three months. When your employment relationship ends, you are still entitled to twelve vacation days that you could no longer take. With a 5-day week the following calculation results: 9,000 euros / 65 days = 138.46 euros per working day. For thetwelve vacation days you get1,661.54 euros.

If you actually still had the opportunity to take your remaining vacation before your last day of employment, then the employer does not have to pay you anything. But the employer must then have clearly pointed out to you that your vacation entitlement expires if you do not take it.

Can vacation entitlements expire?

According to a DGB study, every third employee lets his vacation entitlement expire. This benefits the employers financially and is not really intended that way. Employees who take time to relax outside of the weekends are permanently healthy. Therefore, employees should really take their vacation.

If someone doesn't take their vacation during the year, expires he certainly does not automatically because he has not applied for leave by the end of the year (ECJ, judgment of November 6, 2018, Az. C-619/16 and C-684/16; BAG, judgment of February 19, 2019, Az. 9 AZR 541 / 15).

The employer must ensure that his employees can also take paid annual leave. Before the end of the year, the employer should ask his employees to use the vacation days. He should communicate clearly and in good time that the vacation will be forfeited if it is not taken. The employer comes up with this Duty of care not after, the employee's vacation entitlement remains after new case law of the Court of Justice of the Federal Labor Court, so it does not expire.

If the employer succeeds in proving that the employee voluntarily and with full knowledge of the consequences has renounced his paid annual vacation, the vacation entitlement can expire at the end of the year or at the end of the transfer period (ECJ, judgment of 6 November 2018, Az. C -619/16 and C-684/16). That is why employers are well advised to actively approach employees if vacation days threaten to expire.

On the consequences of the judgment for allegedly forfeited vacation entitlements from the Years ago the Federal Labor Court has not commented. If you have expired vacation days in the past three years, you should try to have the days credited back to your vacation account.

Sample letter - credit note

Here you can see ourSample letter download for crediting expired vacation days:

For download

Can I carry over my remaining vacation to the following year?

You can change your vacation entitlement according to the law Rescue beyond December 31, if there were urgent operational or personal reasons for not being able to take your vacation (Section 7 (3) sentence 2 BUrlG).

A personal reason is for example a long illness. A urgent operational reason can be that your boss could not grant you the vacation because of a tight staffing and many illnesses of other employees. The entitlement then automatically transfers to the following year. You don't have to submit an application for this.

But that doesn't mean that you can collect vacation entitlements. According to the law, you have until March 31 of the following year to use up the vacation days transferred from the previous year. If you have not completely used up the old vacation by then, it will generally expire (BAG, judgment of December 7, 1993, 9 AZR 683/92).

In collective bargaining or employment contracts there are often regulations that provide employees with better benefits when transferring vacation entitlements or that are based on the law. A typical clause in the employment contract is as follows:

"In justified exceptional cases, it may be possible for the employee to take the vacation, with the prior consent of the employer, at the beginning of the following year, but no later than March 31st."

Many employers do not even pay attention to whether there is really a justified exception; You agree that employees can take remaining vacation days with them into the new year, even if there is actually no reason to do so. But you should know that you cannot simply transfer the remaining vacation days.

Transfer to the following year due to probationary period

If a new employee was unable to fully take his vacation due to the waiting period of six months, this partial vacation must be carried over to the next calendar year at the employee's request.

Example: You started a new job in a company and on December 31st you hadn't been there for six months. In this case, the vacation entitlement of the previous year does not expire until March 31st. However, if the waiting period of six months expires in October, for example, you also have to take your vacation. Otherwise it threatens to expire.

Transfer to the following year due to permanent illness

Those who are absent due to illness for several months or the entire year are also entitled to vacation. The remaining vacation days are generally carried over to the following year until March 31st due to personal impediments.

But what if you dolonger than the end of March are on sick leave? Also then loseYou your entitlement to paid annual leave Not and you can take the vacation days when you are healthy again and can come to work (ECJ, judgment of January 20, 2009, Az. C-350/06 and C-520/06).

Despite this case law, employees can, however, have vacation rights not unlimited accumulate. At the latest 15 months after the end of the working year in which the vacation entitlements were acquired, it ends (BAG, judgment of August 7, 2012, Az. 9 AZR 353/10). This is the so-called 15 month case law of the Federal Labor Court.

Example: An employee has been sick since January 2017 and will return to work on April 1, 2018. For 2017 he has full vacation entitlement. Like the 2018 vacation, this vacation from 2017 expires on December 31, 2018.

Transfer of vacation days due to maternity leave

The same applies to an employee who can no longer take her vacation during the year because she has become pregnant and is no longer allowed to work due to an employment ban under the Maternity Protection Act (BAG, judgment of August 9, 2016, Az. 9 AZR 575 / 15).

The vacation then does not expire at the end of the year and also not on March 31 of the following year. Rather, after the maternity leave period has expired, the employee can claim the remaining vacation in the current or in the next vacation year (Section 24 sentence 2 MuSchG). So make sure that your boss doesn't just count the vacation days against the time of the ban.

Transfer of vacation days due to parental leave

If an employee takes parental leave, the leave not yet taken does not expire on December 31st. After returning from parental leave, the employee is also entitled to the old vacation days (Section 17 (2) BEEG).

If you haven't completely taken your vacation before parental leave, you should make a note of how many vacation days you still had. After returning from parental leave, you should inform your employer that you still have remaining vacation days, even if these can no longer be seen in your vacation account.

Forfeiture clause in the employment contract

Many employment contracts have a so-called sunset or exclusion clause. After that, claims that you do not assert within a certain period of time, usually three months, expire. This also applies to vacation entitlement. Therefore, you should talk to the employer or the HR department about the vacation entitlements you have accumulated and register them early if you can work again after a long illness.

What applies to vacation when changing jobs?

How are vacation entitlements distributed if an employee changes jobs during the year? The number of vacation days he is entitled to depends on when he leaves the old employer.

Change in the first half of the year - Anyone who leaves their old employer before June 30th has a pro-rata vacation entitlement amounting to one twelfth of the annual vacation for each month that they are employed by the company.He can then claim the remainder of the annual vacation from the new employer, also one twelfth of the annual vacation for each full month in his company.

Change in the second half of the year - If you leave your old job after July 1st, you have full vacation entitlement with your old employer. So you can take the entire vacation until you leave - mostly to the annoyance of the old employer.

Example: A clerk quit her old employer on July 31 and started a new job on August 1st. According to both the old and the new employment contract, she is entitled to 30 days of paid vacation. She has already taken 24 vacation days with her old employer. The new employer only has to grant six days of vacation because she has already taken the other days with her old employer.

In order for this to work, the old employer must give the employee a certificate of the vacation granted or paid for in the current calendar year when the employment relationship ends (Section 6 (2) BUrlG).

The certificate is important for employees. If you want to apply for leave from the new employer and do not present the certificate, the new employer may refuse the leave. Without a certificate, he can assume that you have already taken full leave with your old employer (BAG, judgment of December 16, 2014, Az. 9 AZR 295/13).

Too much vacation taken - Anyone who leaves the company before June 30, but has already used up all of their annual vacation, does not have to reimburse the excess days (Section 5 (3) BUrlG).

What if I get sick while on vacation?

"A good employee only gets sick on vacation" is an old employer saying. The law sees it differently: If you get sick while on vacation, you cannot recover. Therefore, the vacation days remain if the employee presents a medical certificate (§ 9 BUrlG). What you need to consider in this case, we have summarized in our article Sick on vacation.

The same applies to cures or other preventive medical care or rehabilitation measures. The employer may not count these days against the annual leave (§ 10 BUrlG). However, this only applies if the employee is entitled to continued payment in the event of illness.

Can the vacation entitlement be inherited?

It can happen that someone dies in the middle of working life. It is important for heirs to know: Remaining vacation does not expire with the death of an employee; rather, claims for vacation not taken are transferred to the heirs (BAG, judgment of January 22, 2019, Az. 9 AZR 45/16). The Federal Labor Court has thus followed the case law of the European Court of Justice (ECJ, judgment of November 6, 2018, Az. C-569/16 and 570/16).

Heirs are entitled to vacation compensation against the old boss of the deceased. This also applies to additional leave that severely disabled people are entitled to. You may have to prove the status of the heir with a certificate of inheritance. The heirs should not give away the money.

Dr. Britta Beate Schön

Dr. Britta Beate Schön

Britta Beate Schön is responsible for all legal issues at Finanztip. The doctor of law and attorney was head of the legal department at financial service providers such as Telis Finanz AG and Interhyp. Before that, she taught and researched in Japan as a DAAD junior professor for German and European law. She completed her studies in Münster, Geneva, Regensburg and Leipzig. You can reach the author at [email protected]

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