Term and Definition of Paid Leave of Absence
Paid leave of absence refers to a period during which an employment relationship continues despite temporary exemption from work due to specific circumstances regulated by law or contract, and the agreed remuneration continues to be paid. The term “Karenz” (leave of absence) originates from labor law and generally denotes a period without work in which an employment relationship (with or without pay) is maintained. In contrast to unpaid leave of absence, the employee receives continued remuneration or another form of compensation during paid leave.
Distinction from related terms
Paid leave of absence must be distinguished from similar employment law instruments such as maternity protection, parental leave, care leave, unpaid exemption, or unpaid vacation. The special feature of paid leave lies in the combination of exemption from work with the entitlement to continued payment or wage replacement.
Legal Basis of Paid Leave of Absence in Germany
Maternity Protection and Maternity Pay
The Maternity Protection Act (MuSchG) governs the exemption from work for expectant and nursing mothers (maternity protection periods) and provides financial compensation through maternity pay. During maternity protection, women may not be employed for six weeks before and eight weeks after childbirth. During this period, they receive maternity pay and an employer supplement, which constitutes wage replacement within the framework of paid leave.
Parental Leave and Parental Allowance
During parental leave under the Federal Parental Allowance and Parental Leave Act (BEEG), there is generally no entitlement to remuneration from the employer. Paid leave is, however, possible in the form of parental allowance – a government wage replacement benefit. Here too, the employment relationship remains in place, and termination is generally excluded.
Care Leave and Family Care Leave
Within the framework of care leave (§ 3 PflegeZG) and family care leave (§ 2 FPfZG), partial paid exemption is possible under certain conditions. Employees may take leave from work to care for close relatives; the care support benefit pursuant to § 44a SGB XI serves as wage replacement.
Illness and Continued Remuneration
If an employee becomes ill, there is an entitlement to continued payment of wages under the Continued Remuneration Act (EFZG) for up to six weeks. “Paid leave of absence” in this context refers to the period of incapacity for work due to illness with continued wage payment. Afterwards, there is an entitlement to sickness benefit, which is paid by the health insurance fund.
Educational Leave
In most federal states, there is a statutory entitlement to educational leave. During this time, the employee is released from work but continues to receive salary. This entitlement generally covers five days per year and applies to job-related further training.
Contractual and Collective Agreement Regulations
In addition to legal provisions, further or differing rules on paid leave of absence can be agreed upon in employment contracts, company agreements, and collective bargaining agreements. These often include:
- Special leave for particular personal occasions (e.g. marriage, birth of a child, bereavement in the family)
- Leave of absence for performing public duties
- Leave due to care or supervisory obligations
- Transitional leave of absence in the context of company restructurings
Requirements and Entitlement Criteria
The requirements for entitlement to paid leave are determined by the respective underlying legal or contractual rules. Key factors may include:
- Length of employment
- Submission of certain documents (medical certificate, birth certificate, care certificate)
- Adherence to deadlines for notification or application for the leave
- Employer’s approval, as long as there is no mandatory legal obligation
Effects of Paid Leave on the Employment Relationship
Continuation of the Employment Relationship
During paid leave of absence, the employment relationship generally continues to exist. Only the duty to work is suspended, not the other rights and obligations of the employment relationship. This particularly concerns claims to return to the workplace, continued payment of social security contributions, and the existence of protection against dismissal.
Social Security Treatment
As a rule, during paid leave of absence, there remains a compulsory insurance obligation in statutory health, long-term care, pension, and unemployment insurance, provided it is a continued wage payment in the strict sense. If a pure wage replacement benefit is paid by a social security provider (e.g. parental allowance or sickness benefit), special regulations regarding the obligation to contribute may apply.
Duration and Scope of Paid Leave of Absence
The duration of paid leave of absence is limited by the respective applicable statutory, collective, or contractual provisions. Common periods include, for example:
- Maternity protection periods: a total of 14 weeks
- Continued payment of wages in case of illness: up to 6 weeks per illness
- Special leave: usually 1 to 5 days per occasion
- Educational leave: 5 days per year
The amount of benefits received during leave is determined according to the regular salary or by statutory wage replacement rates (e.g. 65% of net income for parental allowance).
Paid Leave of Absence in International Comparison
The term and legal structure of paid leave differ internationally and depend on the respective national labor and social law. Comparable but legally distinct models exist, for instance, in Austria and Switzerland. In many European countries, even more generous entitlements to leave and wage replacement are provided.
Asserting Claims and Legal Consequences of Refusal
Employees may assert claims to paid leave of absence by written notification, application, or by submitting the required documentation to the employer. If legitimate paid leave is refused, legal action may be taken in labor court proceedings. Refusal may also give rise to claims for damages or a right to self-initiate leave.
Summary
Paid leave of absence is a central instrument of German labor and social law to ensure the social protection of employees in certain life situations where a work interruption is unavoidable. The specific structure regarding prerequisites, duration, scope, and legal consequences is complex and governed by various statutory, collective, and individual regulations. Paid leave makes a significant contribution to social security and to reconciling work and family life.
Frequently Asked Questions
What legal prerequisites must be met to be entitled to paid leave of absence?
In order to qualify for paid leave, certain statutory prerequisites must be met, deriving from the Maternity Protection Act (MSchG), the Paternity Leave Act (VKG), as well as the Employment Contract Law Adaptation Act (AVRAG). Fundamentally, there must be an ongoing employment relationship, and the applicant must be either the mother, father, or adoptive/foster parent of the child. The entitlement to paid leave of absence generally requires that corresponding applications are submitted on time, particularly when claiming child care allowance, which correlates with leave. Under Austrian law, it should be noted that during statutory leave, no regular salary is paid, but rather social security benefits such as child care allowance can be claimed. A legal entitlement to “paid” leave in the sense of continued salary payment by the employer does not usually exist; it is usually only provided for by collective or company-specific agreements. Employees are required to notify their employer of the planned leave at least three months in advance. The precise scope of salary continuation or substitute benefits and their duration derives from the applicable collective agreement, social security laws, or any company agreements, and therefore, specification is necessary on a case-by-case basis.
Can the employer refuse or restrict the taking of paid leave of absence?
The employer is generally bound by statutory provisions and cannot refuse the taking of statutory leave if the formal requirements are met. Restrictions or refusals by the employer are only possible if deadlines are missed or there is no legal entitlement (e.g. due to lack of parenthood or exceeding the maximum entitlement duration). For company or collectively agreed additional benefits (such as company-paid leave extensions), the employer may refuse if there is no binding legal claim. In all cases, it is recommended to submit all mandatory deadlines and required documentation (e.g. birth certificate, application) on time and in the correct form, as otherwise legal disadvantages may arise.
What employment protection provisions apply during paid leave of absence?
During statutory leave, there is comprehensive protection against dismissal and termination, commencing at the latest with the notification of leave and lasting until four weeks after its end. During this time, the employment relationship may only be terminated in specific, legally regulated exceptional cases, such as gross breaches of duty. Furthermore, employment status remains unchanged (keyword: dormant employment relationship); this notably concerns the crediting of prior service periods, the continuation of social insurance, and any duties to cooperate, provided these are applicable. Any company-specific additional benefits during leave can be governed by company agreements but are not legally mandatory. An important aspect is also the right to return to an equivalent workplace after the end of leave.
How does paid leave affect vacation and special payments?
The period of statutory leave according to the Maternity Protection Act or Paternity Leave Act is generally considered a so-called dormant employment relationship. During this period, there is no entitlement to accumulate ongoing vacation entitlements; however, vacation entitlements accrued before leave do not expire but are retained until the end of the following vacation year (deadlines must be observed). Likewise, there is normally no entitlement to special payments (e.g. Christmas or holiday bonus) during leave, unless otherwise provided by collective agreement, company agreement, or individual employment contract. After returning from leave, the employment relationship resumes in its original scope, thus reinstating the entitlement to ongoing vacation and special payments.
Are there differences between maternity protection, parental leave, and paid leave in terms of statutory regulations?
There are significant legal differences: Maternity protection refers to the protection period surrounding the birth of the child, during which there is an absolute employment ban, and the mother receives maternity pay from statutory health insurance (not regular salary). Parental leave begins after maternity protection or after the birth of the child and is unpaid; during this time, child care allowance from social insurance can be claimed. Paid leave in the strict sense only exists in Austrian labor law through additional contractual or collectively agreed arrangements; it is not a legally standardized norm. Protective provisions (job security, protection against dismissal, crediting of prior service periods) apply during all phases of leave, but their exact structure depends on the specific statutory framework.
How is the application for paid leave of absence correctly submitted from a legal perspective?
The application for leave should be submitted to the employer in writing and must usually be received by the employer at least three months prior to the desired start of the leave, unless different deadlines are specified in special agreements. The application should specify the desired period and, where appropriate, indicate the request for paid leave pursuant to collective or company-specific regulations. Proof of the child’s birth (e.g. birth certificate) generally needs to be attached. If additional collective or individual entitlements are claimed, further documentation or application forms must be submitted in accordance with the applicable requirements. Compliance with formalities is crucial in order not to lose the legal entitlement or delay the start of leave.
What consequences can violations of legal provisions in connection with paid leave have?
Violations of statutory provisions regarding the use of paid or unpaid leave of absence can have employment law and social security consequences. Missed deadlines result in the forfeiture or reduction of the entitlement to leave. An unlawful termination during the leave protection period can be challenged in labor court and may result in reinstatement or compensation. Improper receipt of benefits (such as child care allowance) leads to reimbursement claims by social security. Employer violations (for example, denial of legitimate leave entitlements or discrimination because of leave-taking) may have administrative and civil consequences and are also subject to protection by the Equal Treatment Commission.
