2023-07-16 22:00:00
Dos and don’ts for employees and employers: these labor law issues need to be considered when it comes to holidays.
First things first: no, you don’t have to be available to your boss when you’re on vacation. On the contrary: Being on call is absolutely incompatible with the purpose of vacation, explain Birgit Kronberger and Rainer Kraft from the template portal for labor law and payroll accounting: “According to the relevant case law of the labor courts, this is namely relaxation, the free development of one’s personality, further training and enriching one’s life for the workers.” That means: Smartphones, company laptops etc. can safely remain switched off on vacation.
The Effects of Working on Vacation
If you still work while on vacation – with the employer’s consent, mind you – the question arises as to how effective the vacation actually is. The company then runs the risk that at least part of the agreed vacation period will be considered unused and therefore may not be debited from the vacation account.
Can employees take vacation whenever they want? Basically no! Normally, the employer and the individual employee must agree when the vacation begins. A unilateral start of vacation is therefore not permitted and might lead to immediate dismissal for unexcused absence from work. The law only knows a few exceptions here: unilateral commencement of vacation is permitted, for example, if a sick child under the age of twelve living in the same household has to be cared for and the entitlement to care leave has already been exhausted. Another example is when an employee in a company with a works council announced three months in advance that they would like to take at least two weeks of vacation and despite the intervention of the works council, no agreement was reached with the employer, but the employer also did not bring a lawsuit .
Can a holiday agreement that has been made be revoked unilaterally? Normally no. Once a holiday has been agreed, it is binding for both parties. It can no longer be revoked by either party. Exceptions: if the employee or a close relative falls ill or if the aim is to avoid serious economic damage to the company. This includes, for example, the impending loss of a major order, but not a staff shortage if colleagues become ill. If employees give up their vacation at the request of the company, the company must assume any cancellation costs for trips that they had already booked.
What happens if the employee falls ill while on vacation? Vacation is interrupted if the illness lasts longer than three calendar days. The prerequisite is that the sick leave was not caused by gross negligence, the employees report the sick leave immediately and, as soon as they are back at work, submit a medical certificate. “By the way, the illness does not extend the holiday. Employers and employees have to agree once more when the vacation days missed due to illness are consumed,” clarify Kronberger and Kraft.
What do you have to consider if you become ill abroad? Anyone who falls ill or has an accident abroad must submit the foreign sick note to the health insurance company in Austria as soon as possible following their return. This examines the application and then issues an Austrian sick leave certificate. If the country is outside the EU or the European Economic Area, you must submit an official certificate – in addition to the certificate from the medical practice – which confirms that the treating medical staff is authorized to practice their profession.
When is a company holiday possible? According to the experts, the common practice of closing a company for a few weeks a year and ordering company holidays is on shaky ground in terms of labor law. An individual holiday agreement is required. However, this is already given when the individual employees agree to the company vacation. And that’s what they do when they accept an announced company vacation without objection and actually stay at home. In the same way, a company holiday can already be anchored in the employment contract. The prerequisite for the legal validity of such an advance agreement is that it does not plan the entire annual vacation and that the time frame is fixed as precisely as possible.
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