Employees sick on vacation.

Illness and vacation in general

If an employee falls ill while on vacation and is unable to work, this has legal consequences, as the inability to work and vacation are generally mutually exclusive.

The consequences are regulated by the Federal Leave Act (BUrlG): Days on which an employee is unable to work while on vacation are not considered to be vacation days. Consequently, the employee is entitled to continued payment of remuneration for these sick days while on vacation (Section 3 EFZG).

If vacation pay has already been paid out, employees are required to reimburse these amounts. However, offsetting the vacation pay against claims for continued remuneration would generally be the easier solution. The vacation days which the employee was unable to take due to illness will also be credited back to the employee.

Self-inflicted incapacity to work

The situation changes if an employee’s incapacity for work is their own fault. In principle, the employer must grant the employee leave even then because sick is sick.

However, the employer may refuse to continue to pay wages in such a case, especially if the employee’s illness, which is generally an injury in this case, was caused by gross negligence or with deliberate intent.

Nevertheless, proving this decisive subjective component in the employee’s conduct in a dispute about continued payment of remuneration is generally difficult and, as such, rarely occurs in practice.

Sick on vacation: medical certificate?

As you can see, employees becoming ill while on vacation has legal consequences. Therefore, it comes as no surprise that employees are required to prove that they were actually unable to work due to illness.

If an employee falls ill while on vacation in Germany, they no longer have to submit a certificate of incapacity for work (AU) to the employer themselves. Since the introduction of the electronic medical certificate procedure (eAU), they only have to inform the employer that they are on sick leave. Employers must retrieve the incapacity to work data from the health insurance companies.

If an employee becomes ill while on vacation abroad, vacation days remain vacation days unless a certificate is provided by a local doctor – despite illness. In addition, an employee who becomes ill while abroad is required to contact their employer as soon as possible (via e-mail, telephone, etc.) and inform them that they are ill. Last but not least, they have to state how long the illness is expected to last and where they are located.

If employees do not take these steps, then they have failed to provide sufficient proof of their inability to work. The days spent “sick on vacation” reduce their vacation entitlement accordingly and they have no entitlement to continued remuneration.

Employees may not extend their vacation themselves

If the employee becomes ill while on vacation and provides proper proof, the employer must credit their unused vacation.

However, employees may not simply extend leave to make up for the days lost due to illness. This would be a massive violation of their employment contract and taking leave without permission can be punished with a warning or even dismissal.

Crux question: going on vacation while sick?

But what applies if an employee becomes ill before they go on vacation? Should they go on vacation or should they stay at home?

Essentially, employees must not do anything that endangers their recovery. If the planned trip is more likely to stand in the way of their recovery, then an employee may not travel sick. However, if the planned trip would be more likely to improve their condition, then nothing stands in the way of the trip.

Of course, this is always a matter of perspective and individual judgment.