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Vacation in quarantine? – The ECJ will now decide
Federal Labour Court of 16 August 2022 in Case No. 9 AZR 76/22 (A)
The Federal Labour Court (Bundesarbeitsgericht, BAG) submitted a question to the European Court of Justice (ECJ) for a preliminary ruling on whether the refusal to regrant leave to an employee because he was not ill but ordered by the relevant authority to isolate during his leave, is compatible with European law.
Facts of the case
An employee was forced to quarantine during his leave because he had contact with a person who was infected with the Coronavirus. He demanded that the squandered leave be regranted because he was unable to organise his leave freely as a result of the quarantine order. The Labour Court in Hagen dismissed the claim, while the Regional Labour Court in Hamm found in favour of the employee on appeal.
The judgment
The BAG has called on the ECJ to issue a preliminary ruling in this case. The Federal Leave Act (Bundesurlaubsgesetz) contains a rule specifying that sick days shall not be counted as leave. This provision only applies to sick days and the lower courts have generally held that this rule does not apply where the employee is forced to quarantine although they are not themselves ill (see Vacation even if stuck in quarantine | Advant Beiten (advant-beiten.com)). The application of EU law, especially the EU Working Time Directive and the EU Charter of Fundamental Rights, could give a different conclusion. The BAG stayed the proceedings before it until the ECJ issues its preliminary ruling on the question.
Consequences for practice
The preliminary reference to the ECJ brings with it not insignificant risk that leave will need to be regranted when employees were not able to properly take it, not because they were ill but because they had to spend it in quarantine. There is no legal basis for a regrant of leave under German law. However, the ECJ might come to a different conclusion given the importance of the right to paid annual leave.
Practical tip
The preliminary reference to the ECJ means uncertainty for employers. Unless and until the ECJ has decided that the refusal to regrant leave in such cases is contrary to EU law, employers can continue to refuse employee claims for the regrant of leave. However, employers will have to accept the higher risk when doing so. As a precaution, employers should prepare for employees to have a claim for the regrant of leave and to take this into account in planning. In addition, employers should establish the necessary reserves. The ECJ ruling should not be expected before next year. In addition, employers are free to regrant any relevant leave entitlements now, for example, to strengthen employee loyalty. In such cases, any claims of “company practice” should be avoided.