Special leave: entitlement, duration and rules

What does special leave mean? 

Alongside regular annual vacation, employees can also take what is known as special leave. Unlike ordinary vacation, however, it is not fixed in the plan for every year. Special leave depends on particular events in your private life – so you do not simply have a fixed allowance of days per year. 

Special leave can be taken when, for example, a close family member has died, so that you can attend the funeral. It can equally be claimed when your own wedding or the birth of your child is coming up.

For the duration of special leave, employees continue to receive their pay and do not need to worry about a warning letter or anything similar. But only for a maximum of 5 days at a time.

Special leave in the law

The basis for special leave is found in the German Civil Code (Bürgerliches Gesetzbuch, BGB), more precisely in Section 616 BGB
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“A person obliged to perform services does not lose the claim to remuneration by being prevented from performing the services for a relatively insignificant period of time by a reason in his person and through no fault of his own. He must, however, allow to be credited against him the amount he receives for the period of prevention from a health or accident insurance existing on the basis of a statutory obligation.” Section 161 BGB

The law sets out three conditions for special leave: 

• The employee is unable to work for reasons that lie in his person. 
• The period of special leave falls within a relatively insignificant period of time. 
• The employee is not at fault for the event. 

What are “personal reasons” for special leave? 

Originally – the law was in fact drafted in 1896 – “personal reasons” in the law meant the employee falling ill. Today, however, that is covered by the German Continued Remuneration Act (Entgeltfortzahlungsgesetz, EFZG).

Today, Section 616 BGB refers to the reasons why working cannot reasonably be expected being directly connected with the person of the employee. They must affect him personally. Because this part is not very informative, the main point of reference today is court rulings of recent years that relate to Section 616 BGB.

The wording “reasons lying in the person” is best explained by a counter-example. Section 616 BGB does not apply, for instance, in the case of natural disasters, traffic accidents, traffic jams or strikes on public transport. The circumstances preventing work have nothing to do with the affected person themselves. Instead, the employee bears what is known as the commuting risk (Wegerisiko).

Depending on the case, “reasons lying in the person” therefore means, for example, weddings, births or deaths in the family, but also the illness of your own child.

What is a “relatively insignificant period of time”?

In most cases special leave means a maximum of two days. In some cases, however, up to five days can be granted. Generally, special leave can also be requested for just a few hours, for example for a doctor's appointment. Anything that goes beyond five days forfeits the entitlement to special leave as a whole and with it, in part, the continued payment of remuneration.

Can the employer refuse special leave? 

In certain situations the employer can refuse special leave. That depends on various factors, however:

• No statutory or contractual entitlement: If neither the law (Section 616 BGB) nor the employment contract or collective agreement provides for special leave in the situation at hand, the employer can turn it down.
• Lack of urgency: If the occasion does not count as exceptional or urgent, special leave can be refused.
• Operational necessity: If the business is under heavy workload or the employee's absence would cause major problems, the employer can turn down the special leave.
• An alternative is available: If regular vacation or flexible working hours can be used instead, the employer can point this out.

When am I entitled to special leave? 

As you can see, it is not entirely obvious when exactly special leave can be taken. In principle, the entitlement to special leave is set out in collective agreements. A good example here is the “collective agreement for the public sector” (TVöD), which we will come to later. But the entitlement to special leave can also be written into the employment contract or ruled out there. So it is always worth taking a look at your own employment contract. 

Even so, some conclusions can be drawn from rulings of recent years. As long as no clause on special leave is written into the employment contract or collective agreement, you can use the following points as a guide: 

Is there special leave for a doctor's appointment? 

Anyone unable to work because of illness receives continued pay on the basis of the EFZG. But if, for example, blood is being taken or a doctor's visit is necessary for some other reason, that law does not apply. Instead, employees here are entitled to special leave. 

The following applies, however: employees should first try to schedule doctor's appointments outside working hours. Given the opening hours of medical practices, or depending on the treatment, that is not always possible. Special leave is then requested for the journey and the duration of the treatment. 

Is there special leave for a work anniversary? 

On the basis of Section 616 BGB alone there is no entitlement to special leave for a work anniversary. That is mainly because working on that day cannot be considered “unreasonable”. 

Is there special leave for fathers when their child is born? 

Yes, fathers are entitled to up to two days of special leave for the birth of their child. It makes no difference whether the child is born in or out of wedlock. 

Is there special leave for weddings or entering into a civil partnership? 

An entitlement to special leave for a wedding exists only where it is a civil wedding or the entering into of a registered civil partnership. Anyone planning a church or humanist ceremony, for instance, has no entitlement to special leave under Section 616 BGB. The Federal Labour Court (Bundesarbeitsgericht, BAG) made this clear in an older ruling.   

Is there also special leave for the wedding or golden wedding anniversary of close relatives? 

The wedding of close relatives is in fact a sufficiently personal reason for special leave. “Close relatives” in this case means children or parents. The same applies to the golden wedding anniversary of your own parents, the BAG ruled. 

Is there special leave when your own child is ill? 

Per year and per child, parents are entitled to a maximum of ten days of “children's sick pay” (Kinderkrankengeld) if 

• a medical certificate is available,
• no other person living in their household cannot look after the child
• the child is not yet 12 years old or is disabled. 

Single parents are entitled to a maximum of 20 days of children's sick pay.

Unfortunately, it is not that simple. Special leave only works for an absence of a maximum of five days. That is why, in the case of a sick child, three variants arise:

Incidentally, the situation is similar when employees have to care for a relative. Here, however, the wording of the law is not sufficient for the employee to continue to be paid for that time either. Other conditions have to be settled for that.

Is there special leave for job interviews after a termination? 

Yes, there is. Whether the employee or the employer terminates the employment relationship, the employee is entitled to special leave in order to attend job interviews for a new job. This is governed by Section 629 BGB. Section 616 BGB, which covers special leave, secures the continued payment of wages in this case. 

When is there special leave for a death in the family? 

In the event of the death of close relatives, that is parents, children, a spouse or registered civil partner, employees can take one, sometimes two, days off. It is also not entirely clear how Section 616 BGB is to be interpreted in the case of more distant relatives (grandparents, siblings, uncles and aunts, cousins, etc.). The labour courts have ruled differently on this in the past. So here a direct conversation with the employer in advance is needed. 

Is there special leave for moving house? 

In principle, no. Moves within a single town in particular are not a sufficient reason for special leave. If, however, it is a move for work-related reasons – because the company's site is relocating, for example – then the employee is entitled to special leave. In most cases that means one day. 

Special leave in the public sector – the TVöD

Special leave in the public sector – the TVöD. The collective agreement for the public sector offers employers a point of orientation in many cases. Because, as already described, it is not clear in every case how Section 616 BGB is to be understood. The TVöD provides a good structure here, because for the individual scenarios it not only sets out whether there is an entitlement to special leave. It also states exactly how long that entitlement lasts. Here is the overview of special leave in the TVöD:

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