Legal Vacation Entitlement

Legal vacation entitlement? 20 days, 26 days or 30 days of vacation? The number of vacation days to which employees are entitled is governed by the collective bargaining agreement or the employment contract. However, the Federal Vacation Act sets lower limits. Every employee with a five-day week is entitled to at least 20 days of paid vacation per year. In the case of a six-day week, there are at least 24 vacation days. This corresponds in each case to a legal entitlement to four weeks of paid leave. The entitlement to paid vacation arises after six months of employment.

Calculation of Vacation when Switching between Full-Time and Part-Time Employment

Part-time employees generally have the same rights as full-time employees. How many vacation days they are entitled to depends on the regular distribution of working hours.

Calculating Vacation Entitlement

Calculating vacation entitlement is simple. If the weekly number of hours is worked five or six days a week, the part-time employee is entitled to 20 or 24 vacation days – the same number as the full-time employee. If the part-time employee performs the weekly hours on two or three days, the number of vacation days is reduced accordingly.

Example: Mr. Klausens works 30 hours, 5 days a week. He has 30 days of vacation. Starting next year, he would like to take the 30 hours over 4 days. This reduces his vacation entitlement to 24 days.

As with full-time employees, the rule for part-time employees is that they can take a full four weeks of paid leave.

List of Tools for Calculation

To calculate the vacation entitlement for part-time, there are also practical tools on the Internet. Here, only the framework data must be entered.

• http://www.queensu.ca/humanresources/apps/vacation/
• https://www.services.cnt.gouv.qc.ca/outilscalcul/vacances?lang=en_CA
• https://www.charliehr.com/holiday-calculator

Can Remaining Leave Be Carried over to the Following Year?

As a rule, residual leave cannot be carried over to the following year. After all, the purpose of the legal vacation entitlement is to enable employees to retrieve on a regular basis. There is personal or company circumstances that do not allow employees to claim their vacation entitlement in the current year. For example, in the case of a long-term sickness.

In this case, the remaining leave can be carried over into the following year and taken by March 31 at the latest. Unless special arrangements have been negotiated with the employer, the vacation will expire.

Can Vacation Entitlement Be Forfeited?

Before vacation entitlement is lost, the employer must have expressly notified the employee of this fact. Without this request from the employer, the vacation entitlement cannot be forfeited.

The employer must expressly inform the employee of the awaited expiry of the vacation entitlement. If the employee nevertheless does not submit a request for vacation, the employer can assume that the vacation entitlement is voluntarily and deliberately waived. In this case, the legal vacation entitlement is forfeited.

Vacation Entitlement in the Event of Termination

If an employment relationship has been terminated, there is a pro rata vacation entitlement in the first half of the year and a full entitlement from the second half of the year. In the best case, the outstanding vacation entitlement is taken before the last working day. If it is not possible, payment of the remaining vacation days can be agreed with the employer.

Termination up to and including June 30

If notice of termination is given before July 1 of a year, the vacation entitlement must be calculated on a pro rata basis. For example, Mr. Mustermann gave notice of termination on April 30. He has a legal minimum vacation entitlement of 20 days for the entire year. This means his employment is from 01.01. to 30.04. in the year, thus 4 full months. To calculate the vacation entitlement, use the following formula:

4 months / 12 months x 20 legal vacation days = 6.67 vacation days.

This means that Mr. Mustermann has 6.67 vacation days available this year. Do not round down vacation days.

Termination after June 30

The situation is different if employees were in the employment relationship from January 1 and notice of termination is not given until after June 30. In this case, the full vacation entitlement can be taken.

Legal Vacation Entitlement in the Event of Short-Time Working

Whether the vacation entitlement is to be reduced proportionately in the case of short-time work? This question has become much more relevant since the start of the Corona pandemic. In its ruling of 12. 03. 2021 (6 Sa 824/20), the Düsseldorf Regional Labor Court decided that, under certain circumstances, vacation entitlement can be reduced during short-time work.

Short-Time Work Zero

No vacation entitlement can arise on non-working days either. This means that the number of weekly working days and thus also “automatically” the amount of the vacation entitlement is reduced.

Example: If an entire month of short-time work is ordered, the vacation entitlement for the current calendar year is reduced by 1/12. Thus, for example, employees* who have 30 vacation days stipulated in their contract have their vacation entitlement reduced by 2.5 days.

Short-Time Work – Partial Loss of Working Time

Short-time work zero + normal working days: If full days off work are arranged in one month, while normal work takes place on other days of the same month, the vacation is cancelled proportionally. Only the days of the month when there is no work can be considered. Example: 10 out of 20 working days are 100% short-time. If there is a 5-day week and 24 working days of vacation entitlement, the vacation is reduced by 1 day.

Reduced daily working time: If there is a 50% reduction in working time, only 4 hours are to be worked in a normal 8-hour day. In this case, there is no reduction in vacation. Likewise, there is not a reduction in vacation pay. The law provides that the calculation of the vacation pay is made as if there is no short-time work.

Vacation Entitlement during Parental Leave

For each full month that the employee is on parental leave, his or her leave entitlement may be reduced by one-twelfth. This is governed by Section 17 (1) of the Federal Parental Allowance and Parental Leave Act (Bundeselterngeld- und Elternzeitgesetz – BEEG).

If the parental leave relates to only part of a calendar month, there is no reduction in the leave entitlement for that month. This means that the remaining leave does not expire during parental leave. It can be carried over to the period after parental leave – irrespective of the other rules on the expiry of vacation entitlement that apply in the company.

Vacation Entitlement in the Event of Sickness

If you are sick, you must recover from your sickness. This is different from recovering from work. Therefore, in the event of sickness the vacation entitlement is extended by the number of days of sickness. Prerequisites are:

• the “yellow slip” from the doctor, the certificate of incapacity for work
• as well as the sick report with the employer There is a legal entitlement to have vacation days booked back as remaining vacation.

However, if an employee becomes sick during their vacation, they cannot arbitrarily extend their absence by the number of sick days. After the end of the vacation or incapacity for work, the vacation days booked back due to sickness must be redefined together with the employer as to when they are to be taken.

Vacation Entitlement during the Probationary Period

Many employees assume that a kind of vacation block applies to the probationary period. One may only take one’s vacation after the end of the probationary period. However, this is not true!

For each full month of employment, the employee is entitled to one twelfth of their full vacation entitlement. This pro rata vacation entitlement may be taken during the probationary period. Only the full number of vacation days may be taken by the employee after the end of the probationary period.

Vacation Entitlement upon Retirement

Similar rules apply to retirement as to the termination/termination of employment. The date of retirement is decisive.