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Bad luck? Since the beginning of the pandemic, employees have been asking this question again and again when they have to go into corona quarantine or isolation during their vacation, without symptoms and therefore without a sick note. But are the vacation days lost, or do they have to be credited by the employer? The disputed issue has now landed at the highest German labor court in Erfurt. A case from North Rhine-Westphalia will be heard on Tuesday (10:00 a.m.). Whether he will also be decided, however, is open.

the initial situation

So far, there has been no legal regulation in the event that employees who are in contact with a person infected with corona have to be in quarantine at home or in isolation during their vacation because they have tested positive but have no symptoms of the disease. The Federal Holidays Act only regulates what happens if someone is on sick leave while on holiday: “If an employee falls ill while on holiday, the days of incapacity for work documented by a medical certificate are not counted towards the annual holiday,” it says in paragraph 9. Holiday is therefore for credited these days – it can be made up for later.

What is it about

Labor lawyers in Germany are arguing about whether corona quarantine or isolation without symptoms should still be treated like sick leave. Experts say there are very different, sometimes contradictory, court rulings. Sometimes even in the same state. In North Rhine-Westphalia, for example, courts in Cologne and Hamm came to different decisions.

The case

A locksmith from the Hamm region complained. He had eight days vacation in October 2020. Because he had contact with a person infected with Covid-19, the municipal authorities ordered him to be quarantined at home. The man informed his employer about this and unsuccessfully asked him to credit him with the eight days of vacation spent in quarantine.

He did not have a corona infection and therefore no medical sick leave. He insists on catching up on his vacation – after all, the quarantine got in the way of his recovery – just as it would have been the case with an illness. In short, he couldn’t enjoy his vacation. For his employer, however, the application of the passage in the Federal Holidays Act was out of the question.

The decisions of the lower courts

The labor court dismissed the man’s claim. The Hamm Higher Labor Court upheld her decision. In his judgment it says: “The ordering of a quarantine is diametrically opposed to a free, self-determined design of the vacation period, regardless of how the individual concerned feels about it personally.”

decision open

The holiday regulation in quarantine without a sick note keeps the labor courts in Germany busy. According to experts, one of them has already appealed to the European Court of Justice (ECJ), and the Hamm Regional Labor Court, which granted the man a vacation credit, also used arguments from European law. It remains to be seen whether the Federal Labor Court will nevertheless decide directly or involve the ECJ before making its judgement.

What currently applies