Additional leave
An additional holiday of five days (with a 5-day working week) according to Section 208 (1) SGB IX is given to people with a severe disability recognized for the entire calendar year . The additional vacation days are to be added to the statutory or collectively agreed vacation.
If the severely disabled status does not exist for the entire calendar year (e.g. recognition as a severely disabled person from June 15), the severely disabled person is entitled to one twelfth of the additional vacation for each full month of the severely disabled status in the employment relationship (in the above example for six months).
If this calculation results in fractions of vacation days that result in at least half a day, they must be rounded up to full vacation days. The additional vacation determined in this way is also to be added to the general vacation vacation.
The claim according to § 208 SGB IX is a minimum additional vacation. If statutory, collective bargaining or company regulations (works agreement) provide for longer additional leave in favor of severely disabled employees, these special regulations apply (Section 208 (1) sentence 2 SGB IX).
In the case of equality, however, there is no entitlement to additional leave ( Section 151 (3) SGB IX).
Measurement of additional leave
If the regular working hours of the full-time severely disabled employee are spread over more or less than five working days a week, the additional leave increases or decreases accordingly. Does he work z. B. four days a week, he is only entitled to four days of additional leave. If the weekly working time is distributed to e.g. B. six days, the additional leave is also six days. Even with part-time work by severely disabled employees, the distribution of their working hours over the days of the week is decisive (e.g. three working days per working week = three days of additional leave). However, the duration of the vacation is always limited to one working week. In the public service in individual federal states, additional vacation of up to three days is granted for people with a GdB of less than 50 (cf. § 13 HUrlVO in Hesse, § 23 AzUVO in Baden-Württemberg).
Validity of the general vacation principles: Otherwise the general vacation principles apply, i.e. the additional vacation follows the basic vacation in terms of its occurrence (e.g. waiting period / partial vacation if vacation year is not fully completed; vacation year = calendar year), the granting (e.g. for teachers in the teaching-free time), its expiry and the claim for compensation after leaving the employment relationship (permanent case law of the BAG, see last judgment of 07.08.2012 - 9 AZR 353/10).
The most important general vacation principles
The employee is entitled to the full statutory vacation in accordance with § 4 of the Federal Vacation Act (BUrlG) for the first time after six months of employment. If the employment relationship begins in the second half of the calendar year, the employee can no longer fulfill the required waiting period. In this case, the employee is entitled to partial leave ( Section 5 (1) a and c BUrlG). This means 1/12 of the annual vacation for each full month of existence of the employment relationship. In the following years, the statutory vacation leave occurs at the beginning of each year. If the employee leaves the employment relationship within the first half of a calendar year, he or she is entitled to partial vacation of 1/12 of the annual vacation for each full month of employment.
The general principles for partial leave also apply to additional leave according to Section 208 SGB IX. Two examples: 1.) The severely disabled person joins the company on October 1st. 2.) He leaves the company on March 31st. In both cases, he only acquires part of the basic leave. The additional leave to be added to the basic leave is then only available proportionally. A special feature applies to those severely disabled people whose severely disabled status does not exist for the entire calendar year. Your twelfth additional vacation (see above) may not be reduced again according to the general rules of § 5 BUrlG. This also applies if the employment relationship, e.g. B. because of leaving in the first half of the year, does not exist for the entire calendar year ( Section 208 (2) sentence 3 SGB IX).
Vacation entitlement in the event of incapacity for work / dormant employment
According to the case law of the ECJ and the BAG, vacation entitlements also arise if the employee is ill and unable to work; this applies even if the incapacity to work lasts for the entire vacation year (see ECJ of January 2nd, 2009 - C - 350/06; fundamentally BAG of January 28th, 1982 - 6 AZR 571/79, since then constant case law). Vacation entitlements also arise if the employee's employment relationship is suspended due to the receipt of a temporary disability pension (see BAG of 07.08.2012 - 9 AZR 353/10).
The statutory minimum vacation entitlement according to § 3 Abs. 1 BUrlG (24 working days) does not expire due to the EU-law-compliant interpretation of § 7 Abs. 3 BUrlG if the employee is sick and / or a transfer period of three months after this point in time until the end of the vacation year and / or a transfer period of three months therefore is unable to work. However, the entitlement expires in the event of continued incapacity for work after a transfer period of 15 months after the end of the vacation year (see BAG of 07.08.2012 - 9 AZR 353/10 - and from 16.10.2012 - 9 AZR 63/11 - taking into account the judgment of the ECJ of November 22, 2011 - C - 214/10). The same applies to vacation leave that arose during a dormant employment relationship (BAG of 08/07/2012 - 9 AZR 353/10).
These principles apply in the same way to the additional leave of severely disabled people (BAG from 13.12.2011 - 9 AZR 399/10 - and from 07.08.2012 - 9 AZR 353/10).
Creation and assertion of the entitlement to additional leave
The right to additional leave arises regardless of the employer's knowledge of the severe disability. However, the employee must prove the severity of the disability to the employer by means of the severely handicapped ID card. If the pension office or the competent authority under state law does not make a decision on an application for recognition of the severe disability in the year in which the application is submitted, the entitlement to additional vacation for this year can only be secured if the employee expressly requests the granting of additional vacation from his employer (applicable power). The mere indication that he has submitted an application for recognition and is asserting an additional leave entitlement as a precaution is not sufficient.
Transferability of additional leave
If the severely disabled status is determined retrospectively, there is also a retroactive entitlement to additional leave according to Section 208 (3) SGB IX. However, if the procedure to determine the severely disabled status has dragged on for several years, only the additional leave retrospectively for the last calendar year can be claimed. In addition, this vacation must be taken in the current calendar year until the end of the transfer period (see also Section 7 (3) BUrlG). The length of the transfer period is regularly derived from the collective agreements. The following also applies to the transfer of retrospective additional leave from the previous year in connection with a procedure to determine the status of a severely disabled person: The uncertainty about the recognition of the severe disability is no reason for the automatic transfer of a possible additional leave entitlement to the next calendar year until the end of the transfer period.
Rather, the transfer of any additional leave that may be due must also be expressly claimed from the employer in these cases.
With the expiry of the transfer period, the additional vacation not yet granted for the previous vacation year due to the fact that the severe disability has not been established also expires. However, if the severe disability is retrospectively recognized, it will be replaced by a holiday compensation claim to the same extent as compensation (cf. § 281 Paragraph 1, § 249 Paragraph 1 BGB).
Just like the statutory minimum vacation of 24 working days ( Section 3 (1) BUrlG), however, the additional vacation for severely disabled employees does not expire if the vacation could not be granted due to the employee's inability to work; this applies even to long-term incapacity for work. The limitation of the transferability of the vacation / additional vacation according to § 7 Abs. 3 Satz 3 BUrlG - expiry of vacation after expiry of the transfer period (see above) - does not apply in cases of inability to work due to illness.
Additional vacation entitlement in the event of loss of severely disabled status
The right to additional leave exists as long as the severely disabled status persists. In the event of a downgrade to a GdB of less than 50, there is a right to additional leave in any case up to the end of the 3rd calendar month after the decision with which the reduction was established cannot be contested ( Section 199 (1) SGB IX).
Termination of the employment relationship / compensation for the additional vacation: If the statutory additional vacation can no longer be granted due to the termination of the employment relationship, it must be paid financially ( Section 7 (4) BUrlG). This also applies if the additional leave - as well as the statutory minimum leave - could not be granted until leaving the employment relationship because the severely disabled employee was unable to work (BAG of 23 March 2010 - 9 AZR 128/09).
literature
- BIH Federal Working Group of Integration Offices and Main Welfare Offices (ed.): ABC Fachlexikon. Employment of severely disabled people. 6th revised edition, Cologne 2018.
Web links
- Integration offices in Germany : tasks, information, contact
Individual evidence
- ↑ BAG of March 24, 2009 - 9 AZR 983/07 and from March 23, 2010 - 9 AZR 128/09