Checklist "confidential leave"

Many employees have a growing desire to be able to flexibly organize not only their working hours, but also their vacation time. In addition to working time accounts and sabbaticals, the introduction of so-called "trust leave" is a growing option for meeting this need. Instead of granting employees a certain number of vacation days through their employment contract, as is usually the case, it is left up to them to decide when and how much vacation they take within a year.

This design gives employees a considerable leap of faith. In individual cases, of course, there is a risk that this will be abused. However, the positive effects on employees' motivation to work and their identification with the company are likely to outweigh these risks.

However, since the German Federal Leave Act and the case law of the European Court of Justice lay down specific requirements in the area of leave law, it is crucial for companies to adhere to the framework of what is legally possible:

I. Legal "must-haves

  • The statutory minimum vacation entitlement (24 days for a 6-day week or 20 days for a 5-day week) must not be undercut. A corresponding minimum number of vacation days to be taken should therefore be included in the employment contract.

  • Priority crediting of vacation taken against statutory vacation entitlement.

  • Complete documentation of vacation periods in order to clarify the insurance situation, e.g. with regard to accidents at work.

II. Possible optional regulations

Limits can be set to prevent misuse. It should be noted, however, that these can counteract the desired flexibility, especially when combined.

  • Set time limits:
    - Maximum number of vacation days per year
    - Maximum number of vacation days taken at a stretch
    - Minimum intervals between vacation blocks

  • To prevent sudden understaffing:
    - Notice period
    - Text form for announcement
    - Obligation to consult within the collegium
    - Obligation to carry out an appropriate handover of tasks or current projects

  • Avoiding the extension of continued payment in the case of long-term illnesses
    - By limiting the number of vacation days following a period of incapacity for work
    - By requiring approval of vacation days following a period of incapacity for work

  • In the case of terminated employment relationships, confidential leave may result in the loss of the planning security intended by notice periods. This can also be avoided
    - By limiting the number of vacation days following a notice of termination
    - By requiring approval of vacation days following a notice of termination


III. What else needs to be considered

  • In companies with a works council, there is a right of co-determination, so it is advisable to conclude a works agreement.

Which regulations are right for the specific company is a case-by-case decision. Particularly in view of the possible consequential problems in connection with the payment and transfer of vacation, it is advisable to obtain tailored advice prior to introduction.

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