No leave can be reclaimed for Covid quarantine

The first few labour courts have answered a question largely unresolved in case law to date: Days of officially imposed quarantine must be deducted from annual leave if an employee is in officially imposed quarantine while not being unfit for work during the period of leave authorised.

If an employee falls ill during leave the sick days as evidenced by a doctor’s note do not count as leave (section 9 of the German Federal Leave Act (BUrlG)). This also applies where an employee falls ill during officially imposed quarantine. However, if the employee is in officially imposed quarantine but is not unfit for work, those days must be taken as leave. Section 9 Federal Leave Act does not contain any provisions for this situation.

I. No application of section 9 Federal Leave Act (by analogy)

Bonn Labour Court (judgment of 7/7/2021-2 Ca 504/21), Halle Labour Court (judgment of 23/6/2021-4 Ca 285/21) and Bremen-Bremerhaven Labour Court (judgment of 8/6/2021-6 Ca 6035/21) have all now correctly rejected the application of section 9 Federal Leave Act, relying on the principles we recently developed (see Hein/Tophof, Consequences of quarantine orders during authorised leave, NZA 2021, 601 et seq.). A period of officially imposed quarantine falls within the employee’s sphere of risk and does not justify the application of section 9 Federal Leave Act (by analogy).

The labour courts correctly consider there is no scope for applying section 9 Federal Leave Act by analogy. In that respect, there is no inadvertent lacuna in the Federal Leave Act which would be necessary in order for an analogy to be applied. According to the concept of the Federal Leave Act, events disrupting an employee’s leave generally fall within the individual employee’s sphere of risk as part of their personal life. Furthermore, Bonn Labour Court did not consider that having Covid necessarily meant an employee was unfit for work. An official quarantine order is not equivalent to a doctor’s note certifying unfitness for work. Only a doctor is responsible for assessing the employee’s unfitness for work. Quarantine by itself says nothing about the employee’s fitness for work.

II. Can leave authorised in error be reclaimed?

Can employers now reclaim any leave entitlement they erroneously granted as a result of employees being in officially imposed quarantine?

Such an employer’s right could be based on section 812(1), 1^st alt. German Civil Code (“restitution of performance”). The main precondition for this would be that the employer has given back to the employee the days of leave without any legal justification. This is normally the case:

• The employee does not have a statutory right under section 9 Federal Leave Act analogously applied.
  
  
• Nor will it be possible to classify the erroneous return of leave taken as an employer’s promise of voluntary additional leave if there is no clear indication thereof. The voluntary granting of additional contractual leave is therefore usually excluded as a legal ground for allowing leave granted returned in error to be kept.
  
  
• Even if, over a long period of time, the employer made a credit for the working days of various employees concerned in the mistaken assumption that it was obliged to do so, it will not be possible to infer from this a right to “equal treatment”. There is not only a lack of a deliberate choice by the employer regarding such a supplementary benefit, but according to settled case law there is also no right to “equality based on injustice”.
  
  
• In the same context (mere error on the part of the employer), operational custom (betriebliche Übung) is also ruled out as a legal ground for being allowed to keep leave. This applies at least until the employer, knowing that there is no legal obligation to return leave, deliberately gives back such leave.

There are therefore good arguments as to why there is no legal ground for employees not being allowed to keep days of leave granted by mistake.

III. What should companies do?

It is therefore important for company practice firstly to stop returning leave days to employees in official quarantine, unless it is established that the employee was unfit for work during quarantine. In addition, claims against employees for the recovery of leave should be made immediately and in the form necessary to ensure, firstly, that (collective) contractual preclusive time limits are respected, and, secondly, to prevent the leave granted in error from being used up by the employee. This is because discussions about “de-enrichment” of the employee (section 818(3) German Civil Code) should be avoided as far as possible. Leave accounts should therefore be updated (corrected) on the employer’s side after a corresponding claim has been made. It is then up to the employee to make a claim in court if necessary if they think the balance is incorrect. The works council does not appear to have a right of co-determination under section 87 German Works Constitution Act (BetrVG) in that respect. That is because even “introducing” restitution was done in the erroneous assumption of a legal obligation and the works council has no right to uphold an error.