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Who MUST take their remaining vacation days before the end of 2021?

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2021 is slowly coming to an end. If you still have vacation days left, you might think about taking these with you into the next year as the remaining vacation days. 

Because of the coronavirus and home office, many employees have given up vacation. The problem: According to the law, all vacation days must actually be taken by December 31st. So who must take their remaining vacation days before the end of the year?

Can I postpone my remaining vacation to the New Year?

In principle, the Federal Vacation Act provides that vacation must be granted and taken in the current calendar year.

A transfer of the vacation to the next calendar year is only permitted if there are urgent operational reasons or reasons relating to the employee.

remaining vacation days

Do I have to request the transfer of any remaining vacation?

If the remaining vacation was not taken for the reasons mentioned above, the entitlement is automatically postponed. This means that there is no need to apply to postpone the remaining leave to the following year.

So that there are no discussions with the employer, talk to the employer should be sought and, if necessary, the remaining vacation should be applied for or taken in December.


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Who MUST take their remaining vacation before the end of the year?

In the normal case – that is, there are no urgent reasons for postponing the vacation – the European Court of Justice ruled in November 2018: The boss must ask his employees to take their remaining vacation.

In fact, the employer must indicate in good time and in writing that the remaining vacation must be taken by the end of the year or by March 31 of the following year and that the vacation otherwise expires.

What options do I have to take the rest of my vacation with me?

▶ ︎ Employment contracts, collective bargaining agreements or works agreements can provide for other regulations for the transfer of the vacation.

▶ ︎ The vacation cannot simply expire because the employee has not applied for a vacation.

▶ ︎ An exception can also be made if the employee is ill for a longer period of time.

In any case, it is advisable to talk to the boss.

remaining vacation days

What is the rule for the remaining vacation in the event of a long illness?

In fact, a vacation entitlement arises even if the employee has not worked at all due to illness. Even if the incapacity for work lasts for a longer period of time, the vacation entitlement does not expire for the time being.

In order to prevent the employee’s vacation entitlement from getting completely out of hand, it is now established case law that the statutory vacation entitlement generally expires at the latest 15 months after the end of the vacation year. This applies even if the employee was unable to take vacation due to ongoing illness.

Can I postpone vacation that has already been applied for?

Once the employee has applied for and approved the vacation, the vacation cannot be postponed unilaterally.

A discussion between the employer and the employee is then necessary in order to find an amicable solution.

Can I also have the vacation paid out?

Basically, the vacation should serve the recreation. Such a recovery effect cannot be achieved if the vacation is not granted in kind but is reimbursed in payment.

▶ ︎ However, if the vacation can no longer be granted due to the termination of the employment relationship, the Federal Vacation Act regulates that the vacation must then be paid for.

What happens if I am on short-time work?

Normal vacation can also be granted with short-time work. However, it must of course also be applied for and approved.

The legal situation is not entirely clear when there is zero short-time work. Some believe that there is already an exemption from the obligation to work, i.e. that it is not even possible to grant leave. Others think that vacation comes first. The argument for the latter view is often a look at the salary.

If you are on short-time work, you do not always get your full salary, but if you take vacation during this time, the salary must be paid as if you were not on short-time work.

remaining vacation days

What applies to remaining leave during parental leave?

In principle, you are also entitled to vacation during parental leave.

▶ ︎ According to the case law of the Federal Labor Court, however, the employer has the right to reduce the annual leave entitlement by one twelfth for each full calendar month of parental leave.

However, the employer must make a corresponding declaration in good time.

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