Special leave - You should know these 9 cases!

Most employees understand this to mean an exemption from their work obligation for a specific reason while continuing to receive their salary. In legal terms and according to the wording, the term "special leave" actually refers to an entitlement that exists apart from normal vacation leave in accordance with §§ 1, 11 of the Federal Vacation Act (BUrlG).

We would like to focus on two important questions here:

1. As an employee, do you have the option of refusing to work?
2. Do you receive your regular pay from your employer during this time?

Employees are obliged to perform the contractually regulated activities under their employment contract. However, it is possible to stay away from work and refuse to do so. This applies if the work has become unreasonable for you due to exceptional personal circumstances. In this case, the interests of the employer and the interests of the employee must be weighed up. In many of these cases, employees are not entitled to continued payment of their salary. This is why this is often referred to as unpaid leave of absence. There are numerous possible constellations for a leave of absence in which the employment relationship remains in place but there is no entitlement to continued payment of salary. In the following, we will concentrate on the cases of paid special leave. Only in these exceptional cases does the employee have the option of refusing to work and still being paid regularly.

The entitlement to paid special leave for employees is regulated in Section 616 of the German Civil Code (BGB). It exists if the employee is unable to fulfill his or her duties within the scope of the employment relationship through no fault of his or her own, temporarily or for personal reasons. These statutory claims against the employer do not apply if you are ill! The period of prevention must not be of significance for the employment relationship. These are therefore temporary, isolated or one-off exceptional situations that can justify special leave. However, in order to ensure a certain breadth of interpretation here, the legislator deliberately chose the wording "temporarily prevented" in Section 616 BGB.

The provisions of Section 616 BGB can be regulated more precisely by other agreements that define the employment relationship in more detail. Special leave must therefore also

• Provisions in the employment contract,
• Regulations in the collective agreement,
• the works agreement and
• special laws

must be taken into account.

In most cases, the same rules regarding special leave apply to civil servants in the public sector as to other employees. However, there are specific regulations such as § 29 TVöD (public service collective agreement) which may apply in addition. For federal civil servants, the entitlement is described in detail in the Special Leave Ordinance (SUrlV). Sections 5-22 regulate all entitlements here, including the possible duration of paid leave.

You are entitled to special leave in the event of the death and funeral of a close relative. This includes

• Spouses and life partners,
• own children,
• Adopted children,
• Stepchildren or
• Foster children.
• Likewise parents,
• Parents-in-law
• and siblings.

In the event of the death of a spouse or partner, you are entitled to three working days. In other cases in accordance with § 616 BGB, you may only be entitled to one day to attend the funeral or you may also be entitled to three days' special leave. This always depends on the relationship to the deceased. If the deceased lived in your household, you are entitled to two days' special leave.

In the event of death, you should check the collective agreement, employment contract and works agreement. These often contain more comprehensive rules on special leave in the event of an employee's death. If there is a works council, discuss the circumstances and get an overview.

In practice, a distinction is made between the birth of a legitimate and illegitimate child. The father is only entitled to one day's special leave for the birth of a legitimate child in accordance with § 616 BGB. The Berlin Administrative Court has established a special legal regulation for civil servants in the public sector. Here, a detective inspector was also granted one day of special leave for the birth of his illegitimate child(judgment of 26.02.2014, case no. VG 7 K 158.12). The court used the wording of Section 616 BGB "other important reason" as the basis for this.

If you are getting married yourself, you are entitled to one day's paid leave from your employer. This entitlement also exists for the wedding of your own parents or the wedding of your child. You are also entitled to one working day's paid leave from your employer for the golden wedding anniversary of your own parents. There is no entitlement for other weddings, such as that of a nephew, best friend or acquaintance.

Most employees assume that they are legally entitled to at least one day's special leave when they move house. However, this is only partially true. In general, this only applies if the following conditions are met:

1. The move must be for operational reasons. For example, you move to another city for a new employer.
2. The move can only take place during your working hours.

If you are transferred to another location or your employer's headquarters relocate, you as an employee are entitled to one day off for the move. In a few cases, for example if the relocation location is far away from your current place of residence, several days of paid time off may also be possible.

As the law formulates clear guidelines here, which are often difficult to reproduce in reality, it is also worth taking a look at collective agreements or company regulations. These may also contain more far-reaching labor law regulations covering several days.

Since the coronavirus crisis and the resulting closures of nurseries and schools, everyone has been talking about special leave for childcare. If childcare is not available for a child or a child is excluded due to illness, the employee can stay at home with continued payment of salary. What is important for the leave entitlement is whether the child actually needs to be looked after. The age of the child is particularly important here and whether there are alternatives to a closed/unattendable childcare facility. But also whether the child is dependent on care, for example.

Whether there is actually an entitlement to extraordinary vacation days as part of special leave must be examined on a case-by-case basis. How many additional days of paid leave are actually granted by the employer depends on the individual circumstances. We will be happy to advise you in detail. We look forward to hearing from you.

In many federal states, voluntary office holders in associations who are in an employment relationship are entitled to time off from their employer to carry out this voluntary work. However, this leave often does not take the form of paid special leave. However, there is no general entitlement to paid or unpaid leave for association work under employment law! Rather, such an entitlement is regulated by individual state ordinances. For specific individual cases, it may be worth taking a look at the works agreement and the existing collective agreement. Special provisions often also apply in the public sector.

According to Section 616 of the German Civil Code (BGB), an entitlement to special leave in the event of a doctor's appointment can only be justified if the employee cannot influence the doctor's appointment . The law is clear here. This is the case, for example, if working hours and practice opening hours overlap. In other words, if the doctor does not offer evening consultation hours for working people. Even if you as an employee would have to wait too long for an appointment so that you are not treated on time, you are entitled to special leave.

If you have flexitime arrangements or flexible working hours in your employment contract, there is usually no such entitlement. In this case, it is your responsibility to find and keep a suitable appointment.

Even for operations that are not necessary for the performance of your work, there is no entitlement to paid special leave under employment law. This includes cosmetic surgery, but also operations to correct visual impairments, for example.

If you have been dismissed as an employee, you are forced to look for a new job. To ensure that this can be done successfully within the notice period, your employer must grant you paid special leave in accordance with Section 629 BGB. This may be requested for job interviews and for reporting the dismissal to the employment agency.

If a relative, such as a parent, needs care, you are entitled to one day of paid special leave. You can then take a short period of unpaid leave. This period is usually up to ten days. At the same time, you should submit an application to the relevant care insurance company, which will reimburse you for any loss of earnings incurred as a result of providing care.