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You can still take leave when in quarantine


Maximilian Quader

Submitted by Firm:
Article Type:
Legal Update

Judgment of the Regional Labour Court of Schleswig-Holstein of 17 May 2022 in Case No. 1 Sa 208/21

Even if you are forced to isolate at home as a close contact, you can still take leave (at home) and the employer does not have to subsequently grant leave that has already been taken while in quarantine according to a recent judgment of the Regional Labour Court (Landesarbeitsgericht, LAG) of Schleswig-Holstein.


Facts of the case

Imagine: finally, your long-awaited vacation is about to start when the health authority orders you to quarantine at home as a close contact. This is exactly what happened to an employee. He was forced to spend his 3032 Christmas holidays alone at home. In his view, this was comparable to being sick during his vacation and the Federal Leave Act (Bundesurlaubsgesetz, BUrlG) does not count the period of illness as leave – although, in this case, he was not incapable of working due to illness. Accordingly, he demanded that his employer grant him the days of leave that he had lost while in quarantine. The case came before the LAG Schleswig-Holstein.

The judgment

The LAG rejected the employer’s claim to a regrant of leave. According to the Court, the employer had fulfilled the employee’s entitlement to leave by granting the leave and paying the employee holiday pay. All other events that disrupted his holiday fell within the employee’s general sphere of risks and were his “personal fate.” In particular, the employer does not owe the employee a successful vacation. Paragraph 9 of the BUrlG provides that, in the case of illness during leave confirmed by a doctor’s certificate, the days of incapacity for work do not count towards annual leave. However, this provision does not apply in the current case. The law does not specify what should happen in the current situation. However, if the legislator had wanted a specific rule to apply, it had two years to adopt appropriate provisions. Only when the employee is already unable to perform their duties due to illness are they justified in not counting this same period towards granted leave.

Consequences for practice

Employers should welcome this judgment because it supports a row of decisions rejecting the “analogy” described above (= corresponding application) and thus the claim sought by the employee. However, this has not closed the matter entirely. Most recently, the LAG Hamm added to the uncertainty and approved the grant of new leave in light of the significance of leave entitlements under EU law. Until the Federal Labour Court (Bundesarbeitsgericht, BAG) clarifies this issue, employers can still apply the predominant jurisprudence of the highest courts and reject the request for new leave.

Practical tip

Employers can refer to the judgment in this case and reject any claim for new leave where leave was already approved, and the health authority orders the employee to go into quarantine during their holiday (but they are not too ill to work). Until the BAG hands down a clear judgment on the issue, employers must accept the remaining uncertainty introduced by the judgment of the LAG Hamm.

Maximilian Quader