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COVID-19 quarantine and leave in Germany: a new ruling

Written by
Kliemt.HR Lawyers, the first port of call in employment law for top-class and future-proof advice.
In Germany, if an employee on annual leave falls ill, days s/he cannot work are not counted as leave, provided this is certified by a doctor. But does this apply to COVID-19 quarantine without a medical certificate? No, according to a recent Bonn Labour Court decision.

Holidays are intended for recuperation and to protect employees’ health. To ensure this, under Federal Leave Act (BundesurlaubsgesetzBUrlG) days of incapacity for work during a holiday that are substantiated by a doctor’s certificate do not count towards annual leave. Recently the Bonn Labour Court tackled the question of whether this principle should also apply if an employee has to quarantine due to COVID-19 infection without a medical certificate, and decided it did not. According to the Court, illness with coronavirus does not necessarily and directly lead to an inability to work ( Bonn Labour Court, 7July 2021 – 2 Ca 504/21). 

What was at issue?

An employee became infected with COVID-19 shortly before her authorised leave and had to go into quarantine as a result of an official order. The quarantine covered a period of her leave. The plaintiff did not show any symptoms of illness despite being infected, so she did not contact a doctor (who could have issued her with a certificate of incapacity for work). Subsequently, the employee requested the defendant to credit her with leave days for the period in question. Her employer refused. The employee’s action was unsuccessful at first instance and the Bonn Labour Court also dismissed her claim. 

Leave only credited for proven incapacity for work

In the opinion of the Bonn Labour Court, the requirements of s9 of the Federal Leave Act for crediting the employee with leave days were not met. This provision states that in the event of illness, days of incapacity for work substantiated by a medical certificate are not counted towards annual leave. In this case, however, the plaintiff had not obtained a medical certificate for her inability to work. Without a medical certificate, she was not entitled to have the days of leave in question credited.  

The background to this provision was not only preventing abuse at the employer’s expense, but also the need for a medical assessment of whether an illness in an individual case led to an incapacity to work in the context of the employee’s individual workplace. A doctor’s certificate confirming the employee’s specific incapacity for work was required and the official quarantine orders submitted did not meet these requirements. Even if it was clear from these that the plaintiff had fallen ill with COVID-19, there had been no assessment of her ability to work. The assessment of the consequences of illness for the specific workplace was the responsibility of a doctor: only a doctor was entitled to examine and certify the plaintiff’s fitness for work. Official quarantine orders were therefore not equivalent to a medical certificate of incapacity for work.  

Quarantine order not equivalent to doctor's certificate

Section 9 of the Federal Leave Act did not apply by analogyThere was neither an unanticipated gap in the regulation nor a situation comparable to incapacity for work within the meaning of s9 of the Federal Leave ActThis was an exceptional provision which was to be interpreted narrowly and was not amenable to application by analogy. In any case, there was no comparable factual situation: COVID-19 illness did not directly and necessarily lead to an inability to work. There was not necessarily a comparable impairment with COVID-19 infection, as a symptomless course of the disease does not directly lead to incapacity for work. Rather, depending on the conditions of the individual workplace, it might still be possible to work. In this case, the purpose of the Federal Leave Act, namely allowing the employee’s recovery from work, would still be achieved by granting leave. 

Practice tips

The decision of the Bonn Labour Court is clear and comprehensible. Without a certificate of incapacity for work, employers do not have to re-credit their employees leave that has already been granted despite an official quarantine order. However, the decision is not yet legally binding. The Bonn Labour Court has separately allowed the appeal in view of the fundamental importance of the case, so that the last word has not yet been spoken here. 

Alexa Paehler
Kliemt.HR Lawyers