Well prepared for the holiday season
Practical information for employers
July 28, 2026
Well prepared for the holiday seasonPractical information for employersJuly 28, 2026 Summertime is just around the corner – and with it the main holiday season. For employers, this time regularly brings with it the challenge of personnel planning as well as labor law issues: What happens if an employee falls ill while on vacation? What is the legal situation if a sick note is received immediately before or after the holiday? In addition, very practical questions also arise: How far does the employer's right to issue instructions extend when planning vacations, and can employees be expected to be available on vacation? 1. Vacation planningIn principle, the employees' vacation requests must be taken into account when determining the time of vacation (Section 7 (1) sentence 1 BUrlG). However, these wishes are not absolute: the employer can refuse leave if urgent operational concerns or priority holiday requests from other employees who deserve priority from a social point of view conflict with this. In practice, this means that the employer has a say in holiday planning, but not a unilateral right of determination. He cannot determine the vacation at his own discretion, but must first ask the wishes of the employees and check whether there are operational reasons to the contrary. 2. Accessibility during vacationOne of the most common questions in practice is: Can the employer expect his employees to be available on vacation? The answer is clear: No. The vacation serves the employee's recovery (§ 1 BUrlG). During the leave, the employee is exempt from his duty to work and is generally not obliged to answer business calls, e-mails or messages. 3. Tension between incapacity for workThe coincidence of vacation and illness regularly raises questions of labor law. Depending on whether the incapacity for work occurs before, during or after the holiday, there are different legal consequences. If an employee falls ill during vacation, the sick days proven by a medical certificate of incapacity for work ("AU") are not credited to the annual vacation (Section 9 BUrlG). However, the employee must inform the employer of the incapacity for work and its expected duration immediately as usual and have his incapacity for work determined. The saved vacation days are credited to the remaining vacation account and must be granted at a later date – an unauthorized extension of the vacation by the sick days is not permitted. If the employee is already ill before the start of the holiday and the illness lasts into the holiday period, the sick days are also not counted towards the holiday. Incapacity for work takes precedence over vacation. The leave does not expire, but must be granted again after recovery. If an employee calls in sick immediately after vacation, the employer often asks himself whether this illness is only fake. In principle, an AU has a high evidential value. However, the case law of the Federal Labour Court has made it clear that this evidential value can be shaken if objective circumstances give rise to serious doubts about the inability to work – for example, if the sick note extends the holiday in a "tailor-made" way, the employee had already announced the illness before the start of the holiday, or if there are other abnormalities (e.g. repeated pattern of illness before and/or after the holiday). A "tailor-made" procedure that undermines the evidential value of the AU is recognised, for example, if periods of incapacity for work are separated from each other only by a day off or a weekend off (Federal Labour Court, judgment of 11.12.2019 – 5 AZR 505/18). As is so often the case, the circumstances of the individual case are decisive. 4. Sick leave from abroadMany employees fall ill abroad during their vacation. A certificate of incapacity for work issued abroad must also be recognised in principle, provided that it meets the essential requirements: it must determine the incapacity for work as such and indicate its expected duration. Within the EU, the following also applies: A medical certificate issued there generally has the same evidential value as a domestic certificate. Latest Insights
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