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Summary
The 9th Senate of the German Federal Labour Court (Bundesarbeitsgericht, ‘BAG’) has (once again) submitted a request for a preliminary ruling to the ECJ concerning leave law. It is asking for clarification as to whether the employer is obliged under EU law to (again) grant paid leave to an employee who, although not ill during the leave itself, had to remain in quarantine at home by official order during this period.
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Legal background
According to German law, illness and leave are in principle not compatible. If an employee falls ill during his or her leave, Section 9 of the Federal Leave Act (Bundesurlaubsgesetz, ‘BUrlG’) stipulates that these days must not be counted as leave and therefore must not be deducted from the leave entitlement. Accordingly, Section 9 BUrlG explicitly states:
If an employee becomes ill during his vacation, the days of inability to work as evidenced by a physician’s certificate shall not be applied toward annual vacation.
The same applies according to Section 10 BUrlG in case of measures of medical precaution or rehabilitation, which fall into the leave period, as far as they are subject to a legal claim for continued payment according to the Continued Remuneration Law (Entgeltfortzahlungsgesetz, ‘EFZG’).
In the times of the Covid-19 pandemic, in order to prevent the spread of the virus the authorities were obliged to order official domestic quarantines. This meant that the authorities were authorized to temporarily isolate persons suspected of being infected with the coronavirus or persons who could potentially spread the virus, e.g. because of personal contact with an infected person.
The legal basis for measures taken by the responsible infection protection authority is provided for in the German Infection Protection Act (Infektionsschutzgesetz, ‘IfSG’). Among other things, Section 56 IfSG stipulates that employees who have to go into quarantine by official order shall receive continued payment of their wages from their employer for a period of up to six weeks. In return, the employer will be reimbursed for the continued payment of wages by the authorities. However, there are no regulations on how quarantine ordered by the authorities may affect an employee’s entitlement to leave and/or whether quarantine periods are to be considered as illness periods, irrespective of whether an inability to work has also been certificated at the same time. -
Facts
The parties in the case at hand were in dispute about whether leave could be effectively granted during periods of quarantine ordered by the authorities.
The plaintiff had been employed by the defendant as a locksmith since 1993. Upon his request, the defendant granted him eight days of leave for the period from 12 to 21 October 2020.
By an official quarantine notice of 14 October 2020, the plaintiff was ordered into domestic quarantine for the period from 9 to 21 October 2020. This was because the plaintiff had previously been in contact with someone infected with the coronavirus. However, the plaintiff did not fall ill himself. During the period of quarantine, the plaintiff was prohibited from leaving his home and receiving visitors from persons other than household members without the express permission of the health department.
In accordance with the leave approval, the defendant deducted eight days of leave from the plaintiff’s leave entitlement, without recognition of the quarantine period.
The plaintiff informed the defendant about the ordered quarantine and requested the leave days to be re-credited to his leave entitlement. He asserted that the period of an official quarantine was comparable to a period of incapacity for work due to illness during leave. Therefore, leave that falls into the quarantine period may not be deducted from the annual leave in accordance with Section 9 BUrlG and would need to be granted (again).
After the employer refused to add the leave granted during the quarantine period to the employee’s annual leave entitlement, the employee applied for a refund of the leave before the Local Labour Court.
The Local Labour Court (Arbeitsgericht) of Hagen dismissed the claim. It argued that by granting the applied leave, the parties had concretized the leave entitlement of eight days for this period and that the defendant thereby fulfilled its part of the required obligations. The employer should nevertheless be deemed to have fulfilled its obligation to grant leave in case the granting of leave subsequently becomes impossible – e.g. as a result of the quarantine – if the employer is not responsible for the impossibility.
The plaintiff’s appeal against the judgment, on the other hand, was successful. With reference to the ECJ case law regarding Article 7 of Directive 2003/88/EC, the Regional Labour Court (Landesarbeitsgericht, ‘LAG’) of Hamm found that Section 9 BUrlG – no deduction of leave days in case of illness – would apply accordingly (by analogy) to the case of an official quarantine. The consequence of this would be that times of quarantine during granted leave periods could not be deducted from the leave entitlement. The days of leave falling into the quarantine period would therefore have to be granted subsequently and thus have to be re-credited to the plaintiff’s leave entitlement. In justifying this, it stated that the ECJ had made clear that the entitlement to paid annual leave is intended to enable the employee to regenerate and to have a period for rest and leisure and that this entitlement has to be considered as a particularly significant principle of community social law from which, in principle, no deviation is permitted (ECJ, judgment of 30 June 2016, Case C-178/15; judgment of 20 January2009, Joined Cases C-350/06 and C-520/06). Against this background, and in the absence of any statutory provisions to the contrary, the legal consequence of Section 9 BUrlG would have to apply mutatis mutandis to cases of official quarantine, as this would be comparable to the situation of an employee who is unable to work due to illness.
Against the decision of the LAG Hamm, the employer filed an appeal before the BAG. -
Judgment
On 16 August 2022 the BAG suspended the proceedings and called upon the ECJ for a preliminary ruling. This in order to have the ECJ clarify whether there is a conflict or infringement with Article 7 of Directive 2003/88/EC and/or Article 31(2) of the Charter of Fundamental Rights of the European Union if leave requested by the employee and granted by the employer that overlaps with a domestic quarantine ordered by the competent authority because of a suspicion of infection after approval of the leave, but without the employee being unable to work due to illness at the same time, would not be reimbursed. In other words, the question to be clarified is whether the employer is obliged under EU law to (again) grant paid leave to an employee who is not ill during the leave itself, but who had to comply with an officially ordered domestic quarantine during the leave.
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Commentary
Although the reasoning of the decision has not been published yet, the press release of the BAG’s decision indicates that it does not see any reason for an analogous application of Section 9 BUrlG and thus assumes in principle – subject to conflicting EU law – a ‘forfeiture’/an effective granting of the leave during the quarantine period. This corresponds with the view of other national courts, which have had to deal with similar claims recently.
For example, the LAG Düsseldorf has decided in its judgment of 15 October 2021 (7 Sa 857/21) (also with comparable reasoning the Labour Court of Bremen-Bremerhaven, judgment of 8 June 2021 (6 Ca 6035/21)) – and thus similar to the court of first instance in the case at hand (the Local Labour Court of Hagen) – that the employer is solely responsible for the release from work and the payment of leave pay when it comes to granting of leave, but not for any ‘success of leave’ going beyond this. In the opinion of the courts, all events that subsequently interfere with leave are, as part of the personal fate of life, fundamentally the risk of the employee. This with the consequence there will only be a non-deduction/refund of leave days in case of already granted leave if (at the same time) an inability to work due to illness has been evidenced by a medical certificate. The same shall apply according to the LAG Cologne, which stated in its ruling of 13 December 2021 (2 Sa 488/21) that Section 9 BUrlG is to be interpreted restrictively and could not be extended to other circumstances. This is because the individual usability of leave would not be a criterion for granting additional leave. According to the Court, not even imprisonment, the most severe restriction on the usability of leave, would lead to the subsequent granting of leave. The Labour Court of Halle an der Saale in its judgment of 23 June 2021 (4 Ca 285/21) also denied an analogous application of Section 9 BUrlG in cases of a domestic quarantine ordered by the authorities during (approved) leave. This because, in the case of a ‘merely’ suspected infection, there would (not yet) be any illness.
From our point of view there is no legal requirement that forces the employer to – again – grant leave. The risk that the employee can ‘use’ the leave to do what they want to do rests with them, not the employer. If the employee had wished to visit the Netherlands during the leave but did not because it was raining, of course they are not entitled to a reimbursement of leave.
It therefore remains to be seen if and how the ECJ will have an additional impact on German leave law. -
Comments from other jurisdictions
Italy (Ornella Patanè, Toffoletto De Luca Tamajo): In Italy in 2021 there was a specific law that provided that a quarantine period was equivalent to illness and therefore the salary during this period was paid by the National Social Security Body as illness.
However, the law changed in 2022 when the aforementioned law was cancelled and therefore quarantine was not considered as illness. As a consequence, quarantine is no longer illness nor paid leave. Therefore, if it is possible, according to the kind of job performed and the organization of the company, the employee could work remotely; otherwise, quarantine is considered to be an unpaid leave because the impossibility to work is not connected to the actions of the employer.The Netherlands (Jan-Pieter Vos, Erasmus School of Law): It is difficult to predict the outcome, not least because the ECJ’s case law on annual leave has been so surprising at times. The ECJ could approach the question in a number of ways. It could emphasize various factors. In this comment, I explore a few scenarios. Of course, the Court could combine some approaches, or include others in the mix.
Firstly, the ECJ could treat the quarantined employee as if he was sick himself. The Court has always been clear about sickness: sick people can enjoy their leave once they have recovered. It seems far-fetched and unconvincing to me, but the Court might find some way to adopt a notion like associative discrimination such as in the seminal Coleman judgment (C-303/06). There would be various problems with this approach, not least because of the question: would this also apply to a worker with an ‘ordinary’ sick family member (even if it concerned a one-day flu)? Also, the underlying principles of annual leave and discrimination are very different. But perhaps the Court is willing to make an exemption for Covid-based quarantine.
Covid-19 itself could be a perspective as well. Everything was different during the peak of the pandemic. As far as I am aware, there is no ECJ case law yet where the pandemic played an important role within the contractual relation between parties, but two opinions (Cases C-396/21, FTI Touristik, and C-407/21, UFC) by Advocate General Medina suggest that tourist operators and Member States have some although not much room in deviating from directive provisions – they concerned refunds for non-conformity in cancellation of travel packages. As customers seem to take some of the burden, perhaps the same could be said about employees – although the regulatory context between the situations obviously is different.
Alternatively, the Court could adopt a functional approach to annual leave. As the case report rightly states, the Court has made clear that the purposes of annual leave are rest and relaxation. Does annual leave cease to be annual leave if the relaxation function is lost as the employee cannot spend their leave in their desired way? Annual leave turned out to be lapsable in KHS, as the unlimited cumulation of leave would lead to the loss of its rest function (KHS, C-214/10, para. 33). If time off cannot be enjoyed, there is something to be said that it cannot count as annual leave. But even so, would it matter that it concerns the loss of the relaxation function rather than the rest function? After all, the Working Time Directive (2003/88/EC) ultimately is a directive on work and rest, not relaxation – which makes a case for leave still to be taken, even if it could not be enjoyed as planned.
The aforementioned approach is associated with the next option, which would be to focus on the fulfillment of the employer’s duties. In Fetico (C-588/18), Advocate General Saugmandsgaard Øe argued that the employer’s obligations do not extend to making sure the annual leave has proved beneficial to the employee: “It is sufficient that the worker has not been subject to any obligation vis-à-vis his or her employer which may prevent him or her from pursuing, freely and without interruption, his or her own interests.” (Opinion, para. 76). In the same case, the ECJ took a different approach. It strictly limited itself to the preliminary question and held that Article 7 of the Working Time Directive did not apply to “national rules providing for special leave on days when workers are required to work which do not allow those workers to claim that leave in so far as the needs and obligations met by that special leave arise during […] annual leave”. From this, one might deduce that the ECJ is aware that annual leave might not always fully serve rest and relaxation, but that it is something that the employer cannot always be accountable for. But similar arguments could also be made in case of sickness, and we all know how that played out.
A last approach which comes to my mind is to view the question of planning of holidays as ‘an arrangement’ to be regulated by Member States (cf. Case C-173/99, BECTU, para. 53). Although mainly in the context of sickness, the Court has held that planning is a matter for the Member States. For example, employees who were sick during a fixed scheduled leave are entitled to that leave once they have recovered. But they are still not entirely free to pick the period, the employer might have a say in it as well (Maestre Garcia, C-194/12, paras. 22-24). In its most notable non-sickness case, Max-Planck (C-684/16), the Court noted that “legislation forms part of the rules and procedures of national law applicable to the scheduling of workers’ leave, which seek to take into account the various interests involved” (para. 37). This could imply anything, from justifying an approach to weigh the mutual interests at stake, to simply accepting such legislation as long as it does not jeopardize a meaningful right to annual leave.
Bearing in mind that it has found annual leave to be a fundamental right, the Court will need to choose between conflicting underlying principles. It therefore seems likely that the judgment will make a significant contribution to our understanding of the right to annual leave.
Romania (Teodora Mănăilă, Andreea Suciu, Suciu – Employment and Data protection lawyers): From a Romanian law perspective, the solution to such a case would have been to report the overlapping days of leave. National legislation prescribes such quarantine situations as a distinct category of medical leave that entitles the employee to a quarantine indemnity as well.
First of all, we agree with the conclusion of the Regional Labour Court that the quarantine order was a situation that cannot be regarded to have been the responsibility of either party. Such conclusion can be applied mutatis mutandis to sickness as well.
At the time of the case, the scope of the quarantine was to prevent infection among people with a high-risk virus and with an unknown pattern of symptoms/medical development. Given the bigger social interest in protecting the population by way of quarantine, both parties, the employer and the employees, were affected by these measures. Thus, it cannot be considered that such situation was at the risk of one party.
Secondly, given the scope of leave, respectively to regenerate and to have a period for rest and leisure, we have to examine if and how the mandatory quarantine measure reduced or diminished the scope of the leave, respectively if it can be considered to have affected it to such a degree that it annulled its main effects.
In the given case, the employee was granted eight days of leave for the period from 12 to 21 October 2020. By an official quarantine notice of 14 October 2020, the employee was ordered into domestic quarantine for the period from 9 to 21 October 2020. Thus, during the whole duration of the leave the employee was under an obligation to remain in quarantine.
Just because the quarantine happened at home, it cannot be assumed that the employee enjoyed the time spent as they would have done if it had been in their free time or that the stress of being at risk of developing an unpredictable illness (or a member of their close family that lived with them at the moment of the quarantine) can equate with rest and leisure.
Also, the case happened during a period of general medical uncertainty, where if a person did not contract the virus they most probably experienced infection cases among family members or they experienced general stay-at-home obligations. Consequently, the general mental effect of such context cannot be excluded and should be taken into consideration when balancing this specific issue of quarantine during the Covid-19 period with the overlap of leave period.Subject: Paid Leave
Parties: Unknown
Court: Bundesarbeitsgericht (Federal Labour Court)
Date: 16 August 2022
Case number: 9 AZR 76/22
Internet publication: https://www.bundesarbeitsgericht.de/presse/behoerdlich-angeordnete-quarantaene-waehrend-des-urlaubs/
https://www.bundesarbeitsgericht.de/sitzungsergebnis/9-azr-76-22/
DOI: 10.5553/EELC/187791072022007004008
European Employment Law Cases |
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Case Reports | 2022/37 Granting of leave during officially ordered quarantine: re-credit of leave entitlements for days spent in official quarantine (GE) |
Keywords | Paid Leave |
Authors | Paul Schreiner en Nina Stephan |
DOI | 10.5553/EELC/187791072022007004008 |
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Suggested citation
Paul Schreiner and Nina Stephan, "2022/37 Granting of leave during officially ordered quarantine: re-credit of leave entitlements for days spent in official quarantine (GE)", European Employment Law Cases, 4, (2022):188-191
Paul Schreiner and Nina Stephan, "2022/37 Granting of leave during officially ordered quarantine: re-credit of leave entitlements for days spent in official quarantine (GE)", European Employment Law Cases, 4, (2022):188-191
The 9th Senate of the German Federal Labour Court (Bundesarbeitsgericht, ‘BAG’) has (once again) submitted a request for a preliminary ruling to the ECJ concerning leave law. It is asking for clarification as to whether the employer is obliged under EU law to (again) grant paid leave to an employee who, although not ill during the leave itself, had to remain in quarantine at home by official order during this period. |