COVID-19 quar­an­tine: Va­ca­tion not to be tak­en into ac­count only with med­ical cer­tifi­cate of in­ca­pac­i­ty for work (Re­gion­al Labour Court Düs­sel­dorf (LAG), rul­ing of 15 Oc­to­ber 2021 - 7 Sa 857/21)

If an em­ploy­ee gets in­fect­ed with COVID-19 dur­ing their leave, they must ob­tain a med­ical cer­tifi­cate stat­ing that they are un­able to work due to the in­fec­tion. Oth­er­wise, the em­ploy­er does not have to grant the em­ploy­ee ad­di­tion­al va­ca­tion time. The of­fi­cial no­tice or­der­ing quar­an­tine is not suf­fi­cient in this re­spect.

The facts of the case (short­ened and sim­pli­fied):

The em­ploy­ee was on va­ca­tion from 10 De­cem­ber 2020 un­til 31 De­cem­ber 2020. Af­ter a COVID-19 in­fec­tion had been di­ag­nosed, the health de­part­ment or­dered do­mes­tic quar­an­tine from 06 De­cem­ber 2020 un­til 23 De­cem­ber 2020 in a let­ter dat­ed 17 De­cem­ber 2020. The let­ter point­ed out that the em­ploy­ee was to be re­gard­ed as sickin ac­cor­dance with sec­tion 2 no. 4 In­fec­tion Pro­tec­tion Act (IfSG). How­ev­er, the em­ploy­ee did not get a sick leave pre­scrip­tion from their doc­tor.

The em­ploy­ee now de­mands that the em­ploy­er grants­them ten ad­di­tion­al va­ca­tion days for the pe­ri­od from 10 De­cem­ber 2020 to 23 De­cem­ber 2020 and is of the opin­ion that these have not been used due to the quar­an­tine im­posed by the health de­part­ment.How­ev­er, the em­ploy­er is of the opin­ion that they have­g­rant­ed the re­spec­tive va­ca­tion time to the em­ploy­ee for this pe­ri­od.

The rul­ing was nei­ther suc­cess­ful in the first or sec­ond in­stance, but the Re­gion­al Labour Court(LAG) al­lowed the ap­peal, so the rul­ing is not fi­nal. It there­fore re­mains to be seen whether the BAG will also have to take a po­si­tion on this.

Ac­cord­ing to the Re­gion­al Labour Court (LAG), § 9 Ger­man Fed­er­al Leave Act (BUrlG) dif­fer­en­ti­ates be­tween sick­ness and the in­abil­i­ty to work based on this sick­ness. The two terms are not equiv­a­lent. Ac­cord­ing to this, the va­ca­tion days that are not tak­en into ac­count in the case of va­ca­tion that has al­ready been grant­ed re­quires that the em­ploy­ee has a sick leave pre­scrip­tion from their doc­tor. This is not the case here. The let­ter of the health de­part­ment only states that the plain­tiff was sick with COVID-19. An as­sess­ment of the plain­tiff's abil­i­ty to work by a doc­tor was not made.

An ana­logue ap­pli­ca­tion of § 9 Ger­man Fed­er­al Leave Act (BUrlG)can also not be con­sid­ered. Ac­cord­ing to the con­cep­tion of the Ger­man Fed­er­al Leave Act (BUrlG), oc­cur­rences in­ter­fer­ing with an em­ploy­ee’s va­ca­tion ba­si­cal­ly fall with­in the risk area of the in­di­vid­ual em­ploy­ee. An anal­o­gy will only be con­sid­ered if a COVID-19 in­fec­tion caus­es a gen­er­al in­abil­i­ty to work and not only in a spe­cif­ic in­di­vid­ual case. This is not the case. An ill­ness with COVID-19, for ex­am­ple, does not au­to­mat­i­cal­ly lead to in­ca­pac­i­ty to work if it is asymp­to­matic. Thus, in the case of a COVID-19 in­fec­tion, there is no gen­er­al sit­u­a­tion that jus­ti­fies a cor­re­spond­ing ap­pli­ca­tion of § 9 Ger­man Fed­er­al Leave Act (BUrlG).

To sum­ma­rize, if the em­ploy­ee is "only" in quar­an­tine and does not also providea sick leave pre­scrip­tion from their doc­tor, va­ca­tion is tak­en into ac­count dur­ing this time and the em­ploy­er is not oblig­ed to grant ad­di­tion­al leave.

At­ten­tion: This ar­ti­cle has been pre­pared to the best of our knowl­edge and is based on the le­gal sit­u­a­tion at the time of pub­li­ca­tion of this ar­ti­cle. How­ev­er, de­spite care­ful edit­ing, no li­a­bil­i­ty can be ac­cept­ed.