In its judgment of February 16.02.2022, 10, Ref. 62 Sa 21/XNUMX, the Baden-Württemberg State Labor Court agreed with the opinion of the LAG Schleswig-Holstein, the LAG Düsseldorf and the LAG Cologne on the question of whether quarantine days can be counted towards annual leave.
THE MOST IMPORTANT THING IN ONE SENTENCE
Vacation that cannot be taken due to quarantine will be forfeited without replacement § 9 BUrlG is not to be applied accordingly.
THE CASE
The defendant company had granted the plaintiff employee vacation for a certain period of time. The health department then ordered quarantine for this period. The company then credited the employee with vacation days for this period. The employee complained and was of the opinion that the vacation had not been fulfilled.
THE DECISION
The State Labor Court dismissed the lawsuit and based its decision, among other things, on the fact that the immediate scope of application of the § 9 BUrlG was not opened. In addition, an analogous application to the case of a quarantine order is not possible. An analogy requires both an unplanned regulatory loophole and a comparable set of interests. In the case to be decided, however, there is no unplanned loophole in the regulations. The terms, among other things, of suspected infection have been known for a long time. Nevertheless, the legislature has benefited from the inclusion of one § 9 BurlG corresponding regulation in the IfSG.
CONCLUSION
The LAG Baden-Württemberg thus agrees with the opinion of the LAG Schleswig-Holstein (February 15.02.2022, 1, Ref: 208 Sa 21/15.10.2021), the Düsseldorf LAG (judgment of October 7, 857, Ref. 21 Sa 13.12.2021/2) and of the LAG Cologne (judgment of December 488, 21, case no. 27.01.2022 Sa 5/1030). Only the Hamm LAG had decided differently in a comparable case (judgment of January 21, XNUMX, case number XNUMX Sa XNUMX/XNUMX).
It will therefore remain very exciting to see how the BAG legally assesses this constellation. However, so far there has been no corresponding application of the § 9 BUrlG withheld. There is therefore much to suggest that it will follow the line of the LAG Kiel.
