Working-Life > Vacation > Leave of Absence

Leave of Absence

Definition, Explanation

Leave of absence is the being freed from the contracted duty to work without the income payment entitlement being ceased. Reasons for a leave of absence can be:

Agreed leave of absence due to

• Procurement difficulties or order shortage
• Sabbatical, in which previously saved working time credits are used in for the time off
• Part-time work for older employees
• Dismissal
• Termination agreement

Forced leave of absence due to

• Dismissal due to misbehaviour by the employee
• Suspension of executives
• Insolvency

An employee is entitled to leave of absence in the following cases

• When the employee is looking for a job
  and the employee has been dismissed or has quitted himself. The only exception is the instant dismissal for exceptional reasons – here, there is no exemption entitlement. However, there is entitlement in cases of a contract-change dismissal, a termination agreement with period of notice, a fixed-term employment, as well as for apprentices and part-time workers. To be granted the leave of absence, the employee must apply for it at least 2 days in advance at the employer. Job-seeking includes job interviews, informative talks at the job centre or a job service as well as qualification tests and leave of absence. Normally, leave of absence time will not be counted as vacation; the employee will still be entitled to as much vacation as he was before. The leave of absence must be acknowledged by the employer, but cannot be denied
• Further education
  An leave of absence can be granted for the use related to an educational vacation
• Home care for sick family members, especially children
  One is entitled to paid exemption in case of disease of one’s child as far as this is not excluded by collective agreement or employment contract. Maximum 5 work days can be used for home care that way. After that, one can be exempt without pay. For either leave of absence, a medical certificate is required. Further required are that there are no other persons who are able to do the home care, and that the child is aged below 12 years or disabled and in need of help. Single parents / single custody persons can take up to 20 work days maximum per year, or, for several children, up to 50 work days. For couple parents it is 10 work days per child and parent, respective 25 work days maximum. During such unpaid leave of absence, the health insurance pays the sickness benefit
• Pregnancy
  For maternity protection, mothers are exempt 6 weeks before the expected date of birth and 8 weeks after birth. If your state of health hinders your ability to exert your occupation, you are exempt with continuing payment. If your ability is limited, you are paid the average wage of the last 3 months before the pregnancy. If there are preventive medical checks and advice talks that are only possible during your working hours, you can be exempt for that time
• Work as a works council member
  In companies of 200 to 500 employees, a works council member is exempt for doing works council tasks. For larger companies, the number of exempt works council members increases respectively
• Marriage (own or children’s), birth of one’s baby, funerals within family circle, changing of one’s quarters, holding honorary office (e.g. as a lay judge in court), attending of official appointments
• Attending doctor’s appointment in case it cannot be done outside the working hours or in case it is necessary to be done instantly because of acute medical conditions

Unagreed leave of absence by the employer is only possible if further employment is not reasonably imposable to the employer. This is considered to be the case if the employee is suspected to have committed a crime or other severe violation of the employment contract, or there is no work to be done, or heavy arguments among colleagues is feared. Generally, the employee is entitled to be employed and paid as long as the employment is contracted to last.

When leave of absenceis mutually agreed, the employment contract persists. Exemption can be regulated in the employment contract or in collective or company agreements. The employer’s duty of care for the employee persists. In turn, the employer has to perform his duties of retrained competition and professional discretion.

Leave of absence can be paid or unpaid. Normally, the employer will keep paying the income until the cancellation period is over, if he is the one to initiate the exemption. If the exemption is a wish of the employee, it will normally be an unpaid one.

Leave of absence can be revocable or non-revocable. In a revocable exemption, the employee can be called back at any time, for the doing of any reasonably imposable work.

In case of an agreed, non-revocable exemption, the employment ends when the leave of absence starts – the employee will be unemployed until he contracts a new employment. This also ceases social insurance membership, that is statutory pension, health insurance, nursing care insurance and unemployment insurance. Correspondingly, contributions are no longer paid by the (former) employer. It begins a 12 weeks period of ‘interruption’ of the unemployment benefit, after which unemployment benefit will be paid again. However the duration of unemployment benefit allowed is a shortened one, of 9 months. In case of a revocable leave of absence, the employee’s duty to be social insured remains. The same for an unagreed exemption imposed by the employer. The interruption period exists only for agreed leave of absence.

Due vacation days that have not yet been taken are not mixed up with any leave of absence time. Common practice therefore is: The employer instructs vacation, and after that the exemption is declared. Alternatively, things con be regulated in employment contracts, or collective or company agreements. In a revocable exemption, it is not allowed to count it as taken vacation. The same goes for compensatory time off for over-hours.

If the employee uses a company car which is intended for occupational purposes only, it is to be returned when the leave of absence starts. If it is also for private use, this advantage is considered part of the income: If it is returned before end of the contract, the employee is entitled to compensation for the lost advantage.

Side-job regulations remain valid during exemption. Approval by the employer is possible, which would allow one to be paid two incomes. What is also possible is an agreement to count the temporary second income against the first one. In this case, the employee would continue to be paid the difference of the exempt job’s income and the second income.

Tips, Checklist

• In case of unagreed leave of absence involved in a cancellation, check whether the mentioned employment contract clauses apply. They might turn invalid if the employee is put at disadvantage
• If you would like to object to a forced (= unagreed) leave of absence, you can sue the employer for continued employment, respectively claim for an injunction. Prerequisite is that you have unsuccessfully demanded the employer to grant you access to your workplace
• Because of the social insurance contributions, one might rather want to be exempt revocably than non-revocably
• Report unemployed at the labour agency right when your leave of absence starts, to initiate the unemployment benefit interruption period as soon as possible
• If you are dismissed, apply for being exempt for job-seeking purposes. The reason and the required duration have to be told, but not the potential new employer
• Make sure that the leave of absence order is given in written or spoken in front of others, by the employer. In a trial, you are responsible for proving the exemption

Last update: 07/19/2010