Special leave

Special leave is a form of leave that is granted for a relatively insignificant period for reasons inherent in the employee. Special leave usually only lasts a few days and, as an exception to the principle of labor law, no wages, no wages are only paid if there is a basis for entitlement in individual cases .

Demarcation

Leave according to the Minimum Leave Act for Employees (BUrlG) is granted for recreational purposes and amounts to at least 24 working days per year for a 6-day week ( Section 3 BUrlG).

Educational leave with continued payment of wages is granted in many federal states on the basis of special further education laws. According to state law, a paid so-called sabbatical is also possible, which serves to reduce individual working hours to an irregular extent up to complete leave of absence.

In the federal states there are also regulations on the release of employees, mostly unpaid by the employer, for voluntary participation in youth work with organizations of free or public youth welfare, as this is viewed as particularly important and worthy of support. In certain countries, in accordance with the budget, the institutions receive state funds to compensate in full or in part for the loss of earnings that honorary employees incur as a result of taking special leave for their work.

In some cases, models of flexible working hours contain flexible special leave; so z. For example, the BMW Group, with its “Full Time Select” model, gives each employee up to 20 unpaid vacation days per year, provided the manager agrees. On the employer side, there are also models of child bonus time in the sense of special leave for parents.

Workers

Possible bases for entitlement to paid special leave for dependent employees can be

special law
Regulation in the employment contract
Regulation in a company agreement
collective agreement regulation.

Section 616 of the German Civil Code (BGB) applies as a so-called catch-all standard . However, the validity can be waived or modified in a collective agreement. The employer is only obliged to pay wages insofar as the collective agreement expressly provides for it, for example when fulfilling civic obligations such as giving testimony in court.

Works council members are to be released from their professional activity without a reduction in pay in order to properly carry out their voluntary work ( Section 37 BetrVG ). The sick pay for illness of a child by law insured workers gem. § 45 SGB V occurs on the other hand as a benefit in lieu of power just in the place of wages paid by the employer. The care of close relatives in acute need of care for a period of up to 10 working days is acc. Section 2 (3) PflegeZG is generally only remunerated with a corresponding agreement. Otherwise, the long-term care fund grants a long-term care support allowance as a compensation payment ( Section 44a (3) SGB XI).

An employment contract can grant or exclude certain types of special leave and regulate the length of the special leave.

Section 29 of the collective bargaining agreement for the public service regulates the so-called time off work with continued payment of remuneration in the cases mentioned there.

According to § 616 sentence 1 BGB his claim to remuneration if he is prevented from performing work for a reason other than illness for a relatively insignificant time by a reason inherent in himself through no fault of his own . Special leave must therefore be distinguished from continued pay in the event of illness . The details of the circumstances that can constitute a reason relating to the employee's person are disputed and essentially results from the case law of the Federal Labor Court (BAG). Are mentioned u. a .: Serious illness or death of the spouse, parent or child, caring for a sick child of non-legally insured employees, personal marriage , fulfillment of religious duties , giving birth of the wife but not of the partner, participation in a family celebration, sometimes also holding one Relocation for business or operational reasons. An obstacle in the person of the employee within the meaning of § 616 sentence 1 BGB does not exist, however, if the employee cannot reach his workplace due to the weather conditions or a weather-related driving ban.

After the termination of a permanent employment relationship, the employee is entitled to an exemption from looking for a job (“application leave”, Section 629 BGB). This also applies to fixed-term employment contracts. The leave of absence is intended to enable the employee to find a new job as soon as possible and to attend interview appointments personally. As a rule, the date is set by the new employer and is usually during regular working hours, so that the time off is necessary. The extent to which the old employer has to grant leave of absence is judged at equitable discretion ( Section 315 BGB). According to the prevailing opinion, § 629 BGB is a case of temporary prevention within the meaning of § 616 BGB, so that the employee is entitled to remuneration if the job search does not take a long time. Section 629 BGB is not mandatory, however, in the employment or collective bargaining agreement, the exemption can be regulated as unpaid, in deviation from Section 616 sentence 1 BGB.

Basically, the employee according to Section 616 sentence 2 of the German Civil Code (BGB) is obliged to have the amount credited to him for the time he is prevented from taking out health or accident insurance based on a statutory obligation.

If an employee is suing for remuneration, he must explain and - in the event of a dispute - prove that he is doing work or that one of the facts governing an obligation to pay without work has occurred.

Public service

Federation

For federal civil servants , soldiers and federal judges , the special leave is regulated in the Special Leave Ordinance (SUrlV). It contains detailed casuistic lists of the circumstances that justify the granting of special leave.

The following are to be mentioned in particular:

Exercise of civic rights and obligations (must, paid)

Military or civil defense purposes (debit, paid)

Completion of a youth voluntary service (formerly: Voluntary Social Year or Voluntary Ecological Year ) (mandatory, unpaid, only civil servants on probation / revocation)

Further training to become a nurse assistant (debit, paid)

union purposes (debit, paid)

professional, political, church, sporting purposes (can, paid); ecclesiastical purposes include B. participation in the World Youth Day and in church conventions and other similar events (cf. commentary on § 16 SUrlV, Weber / Banse, The Vacation Law of the Public Service); These can be church trips that have an appropriate framework (through church services and regular devotions, etc.). The organization and preparation itself does not fall under the standard (see commentary on § 16 SUrlV, Weber / Banse, The Vacation Law of the Public Service)

Work at supranational / intergovernmental institutions (mandatory, unpaid)

Foreign language training / advanced training abroad (optional, paid)

Family trips home for those entitled to separation allowance (must, paid)

Medical examinations / treatments / therapeutic cures (must, paid)

important personal occasions: death of close relatives, childbirth of the wife, business relocation , service anniversary, care leave or illness of relatives (must, paid)

other cases, if there is an important reason (may, unpaid)

Federal states

The special leave for civil servants and judges in the service of the federal states , municipal and church officials is regulated in most federal states in the respective vacation leave ordinance. Hamburg, Lower Saxony and Schleswig-Holstein have issued separate regulations. Mecklenburg-Western Pomerania applies the federal SUrlV.

Web links

Wiktionary: special leave - explanations of meanings, word origins, synonyms, translations

Martin Hensche: Special leave for personal reasons. Last revision: May 21, 2019
Torsten Schmitt: Special leave in the event of the death of a relative Aeternitas eV , 2013 (PDF)

Individual evidence

↑ Synopsis on regulations for the sabbatical year in the individual federal states as of 2014

↑ Special leave, exemption from youth work. In: www.ehrenamt-deutschland.org. Association for social life, accessed on September 10, 2016 . Taken from: German Bundestag, printed matter 14/8900 , Annex 6 of June 3, 2002.

↑ cf. for example, § 5 Law on Granting Special Leave for Volunteers in Youth Welfare (Special Leave Act) GV. NW. 1974 p. 768 (North Rhine-Westphalia)

↑ Peter Knauth: Risk Factor Demographic Change: Generational Diversity as a Corporate Strategy . 2009, Symposion Publishing GmbH, ISBN 978-3-939707-12-7 , p. 235 .

↑ Health: Older means more experienced. Active online, July 25, 2008, accessed July 15, 2014 .

↑ Manuela Beck: 13 examples of paid special leave in the event of death, wedding or move January 12, 2017

↑ cf. the evidence in BAG, judgment of 25 August 1982 - 4 AZR 1147/79 para. 13

↑ cf. For example, § 19 Prevention of work (§ 616 BGB) , IG Metall district of Baden-Württemberg, general collective agreement 2017 (occasions in which special leave is granted with continued payment of wages without taking into account the annual leave: 1 day per calendar year in the event of the death of the spouse, in the case of personal marriage, in the event of the death of children, the confinement of a wife, the marriage of one's own children, as well as in the event of a change of residence if there is a separate household

↑ BAG, judgment of December 13, 2001 - 6 AZR 30/01

↑ BAG, judgment of June 7, 1989 - 7 AZR 500/88

↑ Federal Ministry of Health : Short-term Inability to Work Glossary, accessed on December 30, 2019