The Düsseldorf Regional Labour Court docket (Landesarbeitsgericht, LAG) has dominated {that a} “Corona quarantine” throughout ongoing depart doesn’t robotically result in the following granting of depart pursuant to part 9 of the Federal Depart Act (Bundesurlaubsgesetz, BurlG) – LAG Düsseldorf, 7 October 2021, docket quantity 10 Sa 867/21.
1. Information
The plaintiff was on authorised depart when she examined optimistic for the Sars Cov-2 virus. The well being authority issued a discover ordering quarantine and in addition said that the plaintiff was now thought-about sick within the sense of part 2 no. 4 of the An infection Safety Act (Infektionsschutzgesetz, IfSG). Nevertheless, the plaintiff didn’t have herself examined for incapacity to work. Nonetheless, she holds the view that the times of depart spent in quarantine (10 in complete) ought to be credited to her beneath part 9 BurlG. She subsequently sought a declaration that she was nonetheless entitled to 10 days of depart for the 12 months 2020.
The Labour Court docket dismissed the case. The plaintiff continued to pursue her declare on attraction.
2. Ruling
The LAG dominated that the plaintiff was not entitled to the requested declaration. Part 9 BurlG distinguished between sickness and incapacity for work: Not each sickness led to incapacity for work. Nevertheless, the plaintiff had not supplied proof that she was unable to work. Specifically, the official discover stating that the plaintiff was sick inside the that means of part 2 no. 4 of the An infection Safety Act was not ample for this function, so the courtroom.
An identical utility of part 9 of the Federal Vacation Act (BUrlG) was additionally out of the query, as a result of the employer owed solely launch from work and fee of vacation pay inside the scope of the vacation entitlement and never a “vacation success” (for instance, the likelihood to journey, and so forth.). Occasions that subsequently intrude with depart are a part of the private danger of life and fall inside the worker’s sphere of danger, the courtroom expressed. The legislature had regulated exceptions in sections 9, 10 BUrlG.
There was no comparable curiosity in part 9 BUrlG, which makes the aforementioned exception within the case of incapacity for work on account of sickness. It couldn’t usually be assumed that holidays couldn’t be restful within the case of a Covid 19 sickness, since gentle programs had been additionally attainable. Furthermore, restoration was additionally attainable in quarantine.
Because of the authorized query of whether or not sickness with COVID-19 with out licensed incapacity for work permits an identical utility of part 9 BurlG, the LAG allowed an attraction to the Federal Labour Court docket with out it being obvious that that is pending.
3. Conclusion
The choice is to be welcomed. Not each sickness results in incapacity for work. No exception will be made to this within the case of Covid-19.
As well as, the quarantine order can’t play any function on this context: Quarantine doesn’t essentially forestall restoration, nor does it result in incapacity for work. Even when the worker can’t carry out his or her work within the residence workplace, within the case of an formally ordered quarantine it’s not the sickness that results in incapacity for work, however the official order. On this case, the worker is sufficiently protected by the compensation declare beneath part 56 IfSG.
