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Carnival season: Are employees entitled to paid time off to party?

Although the carnival season in Germany (also known as the “Fifth Season”) officially begins on 11 November, at 11:11 a.m., the celebrations usually take place between February and March.  The Fifth Season reaches its climax in the week before Ash Wednesday, with “Women’s Carnival” (Weiberfastnacht) on Thursday when women “cut off men’s ties” and Shrove Monday (Rosenmontag), when, in some regions of Germany, thousands parade in the street in fancy dress.  Until Ash Wednesday, an often cited “state of emergency” prevails in the carnival strongholds (especially in the Rhineland).

Given the importance placed on carnival season, many companies allow employees to take Women’s Carnival Day and Shrove Monday off work.  However, increasingly, some employers (especially multinationals) concerned about the continuous operation of their German entities during this period, are challenging this practice.  So, are employers required to give employees paid time off work to celebrate Women’s Carnival Day and/or Shrove Monday?  It depends…

Neither Women’s Carnival Day nor Shrove Monday are public holidays.  Therefore, employees have no statutory right to take paid time off work on these days.  However, some collective bargaining agreements (Tarifverträge) concluded between an employer’s association (Arbeitgeberverband) and a trade union (Gewerkschaft) provide for time off work on Shrove Monday.  Such provisions can also be explicitly agreed between the employer and employee on an individual basis in the contract of employment or between the employer and the works council (Betriebsrat) on a collective basis in a works agreement (Betriebsvereinbarung).  To the extent that such provisions apply, employees will be entitled to time off work on these days.

An entitlement to paid time off work may also, in principle, arise from an operational custom and practice (Betriebliche Übung), i.e. the unconditional, regularly repeated grant of benefits from which employees may conclude that the benefits will continue to be granted in the future.  This may be the case if the employer granted unconditional benefits, such as the right to paid time off work on Women’s Carnival Day and/or Shrove Monday, on at least three occasions over three consecutive years.  As such, employers wishing to grant time off for carnival celebrations are advised to do so with the express reservation that the benefit is discretionary and the grant of the benefit does not confer any future rights (Freiwilligkeitsvorbehalt).