Quarantine during recreational leave: current case law

In our last legal tip, we took a closer look at vacation law for employees and shed some light on the topic in general. In this article, we want to look at a recent ruling by the Neumünster Labor Court(03.08.2021, 3 Ca 362 b/21) and address the question: Are vacation days used up during an ordered quarantine?

As the name "recreational leave" suggests, it is intended for the employee to relax and recuperate. Anyone who falls ill while on vacation and has this illness certified may not have any vacation days deducted. But what is the situation if the employee is not on sick leave due to the coronavirus crisis, but is in an ordered quarantine?

Is an ordered quarantine the same as a disease?

An ordered quarantine, like an illness, entails considerable restrictions. The person's freedom of movement is severely restricted. This also has a significant impact on possible leisure activities. Employees who have to go into quarantine during their recreational leave due to contact with a person infected with coronavirus cannot organize their vacation time as they wish in order to recover.

Moreover, even if they were not on vacation, they would not be able to work at their workplace anyway. It therefore initially seems tempting to equate the time in an ordered quarantine with sick leave with regard to Section 9 BUrlG. Accordingly, the vacation days would not be used up during the quarantine period, but could be taken at a later date.

There are big differences between quarantine and illness

However, there are also significant differences between a period of quarantine and a period of illness. During quarantine, for example, the person concerned can organize their time in a restricted but free manner. During illness, on the other hand, the employer must act in such a way that the employee recovers as quickly as possible in order to return to work. There is also an actual inability to work in the event of illness. During the period of quarantine, the employee is physically and mentally fit for work. They are only prevented from actually carrying out their work at the workplace due to the quarantine.

It is therefore also possible for the employee to use the time in quarantine to recover. The risk of being able to take time off freely cannot be unilaterally transferred to the employer. In addition, Section 9 BUrlG is an exceptional regulation that was only created for a specific case of inability to work. This regulation is therefore not transferable to quarantine periods.

Ruling: Vacation days are also used up during ordered quarantine

As annoying as it is for employees if they have to go into an ordered quarantine during their vacation time, the vacation days they have taken and been granted are used up during this time.

In its decision, the ArbG Neumünster follows a similar approach of the ArbG Bremen-Bemerhaven (judgment of 8.6.2021 - 6 Ca 6035/21), which had already ruled that quarantine periods are not to be equated with incapacity to work.