Special leave in the event of death - your rights as an employee and the employer's obligations

One key point is this: In Germany, there is no uniform statutory entitlement to special leave in the event of death for all employees. However, a basis for entitlement often arises in the following ways:

• Special leave may be regulated in the employment or collective agreement or in company agreements (e.g. for the death of close relatives).
• Section 616 of the German Civil Code (BGB) („temporary prevention through no fault of your own“) provides a so-called catch-all provision - according to this, you may be entitled to continued remuneration if you are unable to perform your work through no fault of your own and the prevention is only relatively minor.
• For certain groups, such as public sector employees or civil servants, there are special regulations under collective bargaining or employment law: For example, TVöD § 29 provides for leave of absence in the event of death in the close family circle.

The following applies to employees in the private sector: If you do not have a collective agreement, first look at your employment contract and then talk to your employer.

As there is no uniform statutory duration, the duration of special leave in the event of death depends on several factors:

• The degree of relationship to the deceased person: the closer the relative (spouse/life partner, child, parents), the more likely one to several days will be granted.
• Whether there are collective bargaining or service regulations: In the public sector, two days of special leave are typically granted in the event of the death of a partner, child or parent.
• Whether internal or contractual agreements contain a deviating regulation.
• The specific situation in the company and a possible goodwill arrangement: Some employers also grant additional days or a longer leave of absence for close relatives.

As a guide, in many cases one to three days' leave of absence is granted if a close relative has died.

Yes - special leave in the event of death is often paid special leave if there is a basis for entitlement. It is important to note that the special leave may not simply be credited to the annual recuperation leave (if it is special leave).

However, this does not apply automatically:

• If the employment contract or collective agreement excludes the application of Section 616 BGB, a claim may not apply.
• Unpaid leave of absence remains possible, for example if there is no paid arrangement or if longer leave of absence is required beyond the „relatively insignificant“ amount.

Employers must check whether the employee fulfills the eligibility requirements (e.g. kinship, prevention due to death, no fault).

The following cases are relevant in practice:

• Death of a spouse or partner, child or parent: These relatives are most likely to be eligible for paid special leave - especially in the case of collective bargaining or service regulations.
• Death of siblings, grandparents or more distant relatives: There is rarely a fixed entitlement here; it is often a matter of goodwill arrangements on the part of the employer or individual agreements.
• If there is no contractual or collective agreement provision, the law is based on Section 616 BGB: The reason for the absence from work must be personal to the employee (i.e. not exclusively due to organizational circumstances) and must be relatively short.

Therefore, the closer the deceased was to the employee and the clearer the contractual provisions, the more secure the claim is.

The following procedure is recommended so that you can exercise your rights as easily as possible:

1. Check your employment contract, works agreement or collective agreement: Are there any provisions on special leave in the event of death?
2. Provide proof: The employer may require you to provide proof of facts, e.g. family relationship, funeral date.
3. Submit your request in good time: Ask for time off as soon as possible, formulate your request in writing and state the reason.
4. Have a conversation: Especially if there is no arrangement in place, it is worth making personal arrangements with the employer at an early stage - many are understanding in bereavement situations.
5. Check unpaid leave of absence: If paid special leave is not possible, unpaid time off or use of vacation days may be an option.

The following aspects apply to the employer:

• It should check fairly and transparently whether there is an entitlement to special leave - especially in the case of close relatives and clear regulations.
• If he rejects the claim, he must give reasonable reasons for this, for example because no employment contract contains a provision or the relative was not in a typical entitlement relationship.
• The employer may not simply offset the special leave against the annual leave if it is genuine special leave.
• In the event of longer leave of absence beyond the „relatively insignificant“ period, the employer may indicate that regular vacation or unpaid leave of absence must apply.

A typical pitfall: employees claim special leave for distant relatives or for very long periods - there is often no contractual or collectively agreed obligation here.

The following applies to you as an employee: check your individual terms and conditions of employment or collective agreement, submit your application for special leave as early as possible and - if necessary - clarify with your employer how many days will be taken off. The regulations are not always clear, so it may make sense to seek legal assistance.

Our law firm Haas und Kollegen GmbH specializes in advising employees and employers on employment law. Among other things, we support you in this:

• Check your contractual situation
• assess whether there is an entitlement to special leave
• enforce against the employer
• to point out your options (e.g. unpaid leave, clarification of collectively agreed entitlements) in the event of ambiguity or rejection.