Time off: What to do now

Content

• Definition of exemption: what does it mean?
• Paid and unpaid leave
• Irrevocable leave: unemployment benefits and social security
• Reasons for an exemption
• Release at the request of the employee
• Exemption according to the law
• Release at the request of the employer
• Vacation entitlement on leave

With the employment contract, employees not only sign that they are obliged to work for the employer in return for a mutually agreed remuneration. There is also an entitlement to employment, which means that the employee has the right to work. The exemption is an exception. In this case, the employee is temporarily or permanently released from the obligation to perform his work, ie released. The latter mainly happens in connection with dismissals. What you should know about this ...

Definition of exemption: what does it mean?

Release is the release of an employee from his or her duty to work. While an employee is fundamentally obliged by his contract to perform the agreed services and tasks, he can be released from work and does not have to carry out his work. Due to the contractual regulation, there is usually no wage entitlement either.

However, there are different forms of exemption. For example, it may be possible to take time off to compensate for time off due to overtime. You will also be released in the event of illness, but you are still entitled to continued payment of wages.

The exemption after a termination is particularly important. This is also referred to as suspension. Instead of working the remainder of the notice period, departing employees are released from work until the last day.

Paid and unpaid leave

In the case of an exemption, there is always the question of salary and payment. A distinction is made between two options:

• Unpaid leave of absence
  Often the case when the employee has no legal right to be released from work. This means that there is no entitlement to remuneration. If an employee would like to take time off from work without being entitled to it, there may be an unpaid leave of absence for the agreed period, for example.
• Paid leave:
  This variant is typical when employers release their employees on a legal basis. A common example is an illness. The wage entitlement continues, the obligation to provide benefits is suspended for this period.

In addition, a leave of absence can be revocable or irrevocable by the employer. If an employee is released from work, on leave of absence or suspended until the notice period has expired, this is usually a revocable leave of absence. That is, in principle, your boss can then ask you to return to work and to resume your work.

It looks different with an irrevocable exemption; here the employee becomes unemployed, even if the employment relationship still exists from a purely legal point of view.

Irrevocable leave: unemployment benefits and social security

In July 2016, an instruction was issued to the local employment agencies that in the future, in the event of irrevocable leave of absence, the period of unemployment will no longer be taken into account when calculating the assessment period for unemployment benefits. This contradicts a decision by the Federal Social Court (file number B 12 KR 22/07 R) that unemployment does not mean the end of the contributions subject to social insurance. In other words:

The employee continues to be insured voluntarily in health and long-term care insurance, compulsorily in pension and unemployment insurance and the employer pays the intended employer's contributions. Nevertheless, the exemption counts as unemployment in the sense of unemployment insurance, which means that the employee can already use the placement services of the employment agency.

However, he is not yet entitled to unemployment benefits according to Section 157, Paragraph 1, Third Book of the Social Code (SGB III), as he receives remuneration. So far, so clear. The instruction of the employment agency can, however, have consequences for the employee that depend on individual circumstances, namely if ...

• the exemption covers a very long period of time, for example one year.
• There were also longer periods of time in which there was no entitlement to wages, for example if you were released to care for a relative.
• your pay was significantly higher before the exemption period.

If such a constellation exists, the amount of unemployment benefit can decrease. According to legal experts, however, this instruction is not legally tenable.

Reason: neither the laws offer such a basis, nor is the unequal treatment between irrevocable and revocable exemption in these cases to be seen. Anyone who could be affected by an exemption should therefore check whether the above-mentioned cases apply to them and whether consequences for unemployment benefits can therefore be expected. To be on the safe side, they could agree on a revocable exemption from the start.

Reasons for an exemption

There are various reasons for an exemption and the agreements can also be different. The exemption can be a mutual agreement between the employee and the employer, it can be prescribed by legal requirements or it can be a unilateral order from the employer.

Release at the request of the employee

There are some cases in which the employee can take paid time off at his own request. The most common example of this is vacation entitlement. The employee also has the right to paid leave if he needs time to look for a job. In Section 629 of the German Civil Code (BGB) it says:

"After a permanent employment relationship has been terminated, the person entitled to service must, upon request, grant the obligated party adequate time to seek out another employment relationship."

If you want to look after a relative at home, you have the right to unpaid leave according to Section 3 of the Care Leave Act (PflegeZG). The employer must comply with the request and release the employee for care.

Exemption according to the law

In some cases, the legislator has automatically stipulated the exemption from the duty to work, in which case you do not need a declaration of exemption from your boss in order not to have to come to work. In these cases, you are still entitled to wages even if you are not working. The most important examples are:

• Inability to work when reported sick
• Maternity Protection
• Activity in the works council
• Own wedding

Release at the request of the employer

In some exceptional cases, the employer has the right to unilaterally release employees - that is, without their consent - with continued payment of their salary. This is the case if the interests of the company outweigh a usually contractual employment, for example:

• The employer suspects the employee of a criminal offense.
• He fears that the employee will betray trade secrets.
• The employee could violate competition.
• The employee is a danger to himself because he goes to work while sick.
• The employee is a danger to others because he goes to work while sick.
• The order situation is too small for the employee to be employed.
• The operational process is disrupted by technical problems.

Vacation entitlement on leave

Whether vacation entitlements are offset against the employee's time off depends on whether the time off is revocable or irrevocable. In the second case, the employer must expressly declare that vacation entitlements are taken into account. According to the Federal Vacation Act, the primary goal of vacation is the employee's recovery. This means that remaining vacation days (vacation compensation) are only paid out if vacation cannot be taken. This is one of the reasons why the employer has an interest in granting leave towards the end of the employment relationship.

In the case of a revocable exemption However, the employer may not offset any vacation entitlements. Therefore, the employee is first asked to take his vacation and then the employer orders the leave of absence. Exceptions are possible if there are corresponding regulations in the employment contract, collective bargaining agreement or a works agreement.