Entitlement to vacation despite pregnancy and ban on employment

Entitlement to vacation despite pregnancy and ban on employment

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BAG: You have not yet received your holiday with a holiday permit

(jur). If an employee is unable to take her approved vacation due to her pregnancy and a related ban on employment, a right to vacation compensation is possible. Because even if the employer has already granted the leave, it cannot expire during a ban on employment under maternity protection law, the Federal Labor Court (BAG) in Erfurt clarified in a recently published judgment of August 9, 2016 (file number: 9 AZR 575/15).

This got a woman right who was employed as a so-called operator in the blood donation area. Her tasks included taking human blood. At the beginning of 2013, a total of 17 vacation days were approved in July, August and October.

But work ended in June 2013. Because when the woman found out that she was pregnant, a ban on employment was pronounced. She works with infectious material; employment was therefore not possible to protect the expectant mother and unborn child. The operator did not offer the operator an alternative, risk-free job.

When the employment relationship ended later, the woman asked for compensation for her vacation not taken, a total of 1,400 euros.

The employer refused. The employee received the vacation with his approval, so that he no longer had to pay for it. In addition, the woman was free anyway because of the ban on employment and was able to recover.

However, the BAG saw this differently. In order for the vacation entitlement to be fulfilled, an employer declaration of exemption is required. This was present here. "A declaration of exemption from the employer can (...) only result in the expiration of the holiday entitlement if the employee is obliged to work for the period of exemption," judged the Erfurt judge.

For the applicant, however, there was no obligation to work due to the prohibition on employment under maternity protection law. The employer had also not assigned the woman a replacement job. If there is a general ban on employment during a fixed vacation period, the employer must also bear the “risk of performance disruption”.

It is irrelevant that the applicant could have recovered during the general ban on employment as well as on vacation. According to the Maternity Protection Act, workers could "take the vacation that they did not receive before the ban on employment," said the BAG. If this is not possible due to the end of employment, the employee is entitled to payment for the vacation not taken. fle / mwo / fle

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