Well prepared for the holiday season

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 planning

In 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.

In principle, it is possible to order company holidays, provided that there are justified operational reasons for doing so and that employees have an appropriate part of their annual leave at their disposal. When company holidays are introduced, the works council – if it exists – has a mandatory right of co-determination in accordance with Section 87 (1) No. 5 BetrVG. It is advisable to conclude a corresponding works agreement.

In addition, it should be noted that according to § 7 (2) BUrlG, the leave must in principle be granted consecutively. A division can only be considered in exceptional cases if there are urgent operational concerns or reasons relating to the person of the employee to the contrary. According to the legislature's assessment, the recreational purpose of the holiday can best be realised in a continuous period of time.

In practice, so-called two-week rules are widespread, according to which consecutive leave of more than two weeks is generally not approved. However, such rigid requirements for the maximum length of consecutive vacation periods are legally risky. In a recent decision, the Thuringia Higher Labour Court has made it clear that blanket limits of this kind are on shaky ground (cf. Thuringia Higher Labour Court, decision of 02.03.2026, case no. 4 Ta 15/26). In the case decided, an employer had refused to apply for a three-week leave with reference to the customary two-week rule. The Thuringia Higher Labour Court ordered the employer to grant the requested leave in summary proceedings. The decisive factor was that the employer was unable to present any specific operational reasons relating to the disputed holiday period. Mere organisational considerations, a general preference for short absences or blanket references to a tense personnel situation are not sufficient. Rather, the employer must substantiate in the individual case why the requested contiguous leave period in particular would significantly impair operations and why other solutions – such as the redistribution of tasks or the use of substitutes – are not possible or unreasonable.

Practical tip: Employers should critically review their vacation regulations and internal processes. Rigid two-week rules need to be put to the test. Instead, it is advisable to define clear criteria for prioritization in the event of conflicting vacation requests, to carry out a documented case-by-case review for longer vacation periods requested, and to transparently communicate to employees on the basis on which vacation requests are decided.

2. Accessibility during vacation

One 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.

The employer is therefore generally not allowed to contact the employee during vacation - not even in urgent cases. A contractual obligation to be available at all times during the holiday would be incompatible with the recreational purpose of the holiday and would therefore be invalid. In absolutely exceptional cases, such as in the case of an emergency situation of the company, an obligation to report can at best be derived from the employee's general duty of loyalty. However, such cases are extremely rare and, in case of doubt, must be assessed restrictively. Another special case is the hearing of the employee on suspicion of a breach of duty. Employers who wait for a return from vacation here risk missing the two-week deadline in the event of extraordinary termination.

Practical tip: Employers should establish clear handover processes before the holiday and ensure substitution arrangements. This minimizes the risk that urgent questions remain unanswered during an employee's absence, which make it necessary to contact them.

3. Tension between incapacity for work

The 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.

Sick on vacation

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.

Sick before the holiday

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.

Sick after vacation

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.

If there are reasonable doubts, employers should therefore consider withholding the continued payment of remuneration for the time being – until clarification – and, in special cases, examine the possibility of extraordinary dismissal on suspicion.

If the evidential value of the AU is shaken, the employee must further prove in the event of a dispute that he or she was actually unable to work – for example, by submitting specific medical documents or by providing a certificate from the attending physician. Employers are recommended to check for conspicuous samples and, if necessary, to involve the medical service of the health insurance company; in practice, however, the latter sometimes leads to sobering results for employers, so that judicial clarification is often inevitable.

4. Sick leave from abroad

Many 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.

If the employee is abroad at the beginning of the incapacity for work, he or she is subject to increased notification and proof obligations under Section 5 (2) EFZG: He must immediately inform the employer of the incapacity for work, its expected duration and the address of residence and, in the case of statutory health insurance, also inform the health insurance company accordingly; the costs incurred as a result are borne by the employer. If the employee culpably fails to comply with these obligations, the employer can refuse to continue to pay remuneration until it has been fulfilled in accordance with Section 7 EFZG.

If there are justified doubts about the incapacity for work, the employer can also arrange for a review by the medical service of the health insurance fund in the case of a foreign certificate. According to the case law of the Federal Labour Court, a certificate of incapacity for work issued in a country outside the European Union generally has the same probative value as a certificate issued in Germany; there is no generally lower evidential value solely on the basis of the issuing state (Federal Labour Court, judgment of 15.01.2025 – 5 AZR 284/24). The decisive factor is that the certificate shows that a doctor has not only determined an illness, but also an incapacity for work for a certain period of time. However, the evidential value can be shaken – especially in the case of a non-EU certificate – in the context of an overall assessment of the circumstances of the individual case if individual, innocuous circumstances in themselves give rise to serious doubts in the overall view, such as a conspicuous temporal proximity to the termination or end of vacation, contradictory own factual submissions by the employee or abnormalities in the certificate itself.