Taking time off relieves the employee of the obligation to perform his or her job duties. It can be permanent or temporary, paid or unpaid. Time off is either ordered by the employer or mutually agreed upon between the contracting parties.
There are some rules to follow. Read the most important facts about the legal provisions here.
What does exemption mean?
A leave of absence (also called a suspension) is when an employee is permanently or temporarily relieved of his or her contractual work duties. Time off can be unilaterally ordered by the employer or mutually agreed upon by both parties.
The employer tries to protect itself by the exemption for example from the fact that an already terminated employee acquires further trade secrets or disturbs the operational procedure.
There is a distinction between a paid and an unpaid leave of absence, and between a revocable and an irrevocable leave of absence.
Duration and revocability of a leave of absence?
A leave of absence can last two weeks if you are on vacation. If your employee is given time off after termination, the time off can be up to three months. However, the concrete form of a leave of absence always depends on the reasons, circumstances and the provisions in the employment contract.
In addition, a leave of absence can be revocable or irrevocable. With a revocable leave of absence, you can theoretically ask your employee to resume work as usual.Examples of a revocable leave of absence are vacations or suspension until the end of the notice period.
This is not possible in the case of an irrevocable leave of absence. Although the employment relationship still legally exists in this case, the employee is no longer employed.
Off-boarding employees comprehensively
Your employee has been granted leave of absence following a dismissal? If so, this checklist will help you think of all the important tasks when offboarding.
Who pays for time off?
There are two variants: unpaid and paid time off. We have summarized here for you in which cases unpaid or paid time off comes into play.
Who is entitled to unpaid leave of absence?
In some cases, the employee must be released without pay. This includes, for example:
- Employees who find themselves in an emergency situation (z. B. sudden illness of a family member)
- Employees with a collective bargaining agreement, the employment contract or the company agreement provides for an unpaid leave of absence. Here, the period and the requirements should be clarified. Approval by the employer is still required.
- Employees whose co-workers have previously been approved for leave without pay. In this case, the employee has the right to be granted time off by the employer.
When to be eligible for paid time off?
The leave of absence represents a breach of the principle of "no work, no pay", so that wage claims during the period of leave require a special contractual or statutory basis of entitlement.
An employee is generally not entitled to paid time off.
However, the leave of absence often comes into play in the case of dismissals. The employee can leave the company earlier, but continues to be paid. However, unilateral time off may also be necessary for educational and recreational leave, absence due to illness or to compensate for works council activities.
Implementing leave of absence quickly and clearly
Time off can happen spontaneously and must be implemented quickly. No problem with Personio’s automated offboarding.
What are the possible reasons for a leave of absence?
Time off for a further training measure
The leave of absence for further training is particularly interesting. In addition to the general possibility of paid educational leave, which exists in all German states except Bavaria and Saxony, the employee has the possibility of being released without pay in order to take further training courses.
If, for example, the employee wishes to undertake further training that takes up more time than could be done alongside work, the employer has the freedom to release the employee without pay for a certain, previously defined period of time.
Time off to care for relatives
Good to know: If an employee has to care for a close relative or children for health reasons, he or she has a legal right to unpaid time off (§ 45 SGB V and §§ 2, 3 Pflege ZG). The employer must release the employee in whole or in part so that he or she can pursue care in a home environment.
Time off for childcare
According to the law, parents have the right to take parental leave free of charge for up to 36 months for childcare (§15 BEEG). During these months, the employee is released from his or her obligation to perform work – in the same way, the employer is also released from his or her obligation to pay the employee. This right to unpaid leave ends when the child reaches the age of three. Afterwards, the duties of the employment relationship apply again, without the need for any further agreement.
If parents wish to continue to take unpaid leave after parental leave, this can be agreed with the employee. Important for the insurance: From this point on, it is no longer parental leave!
All further information on the subject Maternity Pay can be found here.
Corona: exemption for high-risk patients
Appropriate protections should be created in the workplace for workers who are considered high-risk patients. If they have contact with very large numbers of people or are exposed to significant risks of infection without protection, they should not continue to be employed.
Employer and employee can alternatively agree to continue employment from the home office. If this is not possible, a mutually agreeable leave of absence may also be considered. In this case, both parties can agree whether the salary (if applicable. will be paid on a pro-rata basis).
Implications for social security
Every employee should be aware of social security consequences before taking unpaid time off. The decisive factor here is the length of the leave of absence: If the unpaid leave lasts longer than one month, a deregistration from health, nursing care, pension and unemployment insurance must be made. From now on, the employee has to insure himself/herself. If the unpaid leave is rescinded or the employee is rehired, he or she must be re-registered with insurance companies by the employer.
We would like to point out that our website is intended for non-binding information purposes only and does not constitute legal advice in the true sense of the word. The content of this offer cannot and is not intended to replace individual and binding legal advice that addresses your specific situation. In this respect, all information offered is understood to be without guarantee of accuracy or completeness.
The contents of our website – especially the legal articles – are researched with the utmost care. Nevertheless, the provider cannot assume liability for the accuracy, completeness and timeliness of the information provided. In particular, the information is also of a general nature and does not constitute legal advice in individual cases. To solve specific legal cases, please be sure to consult a lawyer.