Unpaid leave allows for reduced vacation entitlement

In its recent decision dated 19 March 2019 the Federal Labour Court ruled that periods of unpaid leave will not be taken into consideration when calculating statutory vacation entitlements (docket number 9 AZR 315/17).

In the case at hand, the employee had taken unpaid leave from 1 September 2013 until 31 August 2015. Upon returning to work, she requested statutory vacation days for 2014.

Under statutory law, employees are entitled to 24 days of paid vacation based on a 6 day work week. If the employee works fewer than 6 days, the entitlement is calculated pro rata based on the number of days worked per week.

Until this recent decision, the Federal Labour Court had not extended this pro-rated calculation to periods of unpaid leave. Consequently an employee who was on a sabbatical was able to request vacation days for the time he was away. The Federal Labour Court has now expressly distanced itself from its previous judgment.

If an employee is away on unpaid leave, the obligation to work is suspended. Therefore the employee is not entitled to statutory vacation for such periods of time. If an employee is on unpaid leave for a whole year, s/he is therefore not entitled to any vacation for this calendar year.