On 25 May 2016 the Federal Labour Court (Bundesarbeitsgericht, docket number 5 AZR 298/15) ruled that employees on statutory insurance have a claim against their employer for continued remuneration during preventative outpatient care, if it is carried out with the approval of the social service provider in a facility for medical prevention or rehabilitation within the meaning of section 107 paragraph 2 of the German Social Insurance Code 5 (SGB V).

The plaintiff had been employed as a cook since 2002. From 4 to 24 October 2013 she went to an outpatient facility on an island for preventative medical treatments. 90 % of the costs incurred were covered by statutory health insurance. In the health resort centre and wellness centre the plaintiff received a total of 30 treatment sessions. In advance, the employer refused to release the plaintiff without any loss of pay for the duration of the treatment. As a result the plaintiff applied for leave which was granted to her. She claimed that the leave should not be counted against her holiday entitlement. Accordingly she claimed 15 days of remaining vacation.

The Labour Court (Arbeitsgericht) rejected the complaint. The State Labour Court (Landesarbeitsgericht) rejected the plaintiff’s appeal. The appeal to the Federal Labour Court (Bundesarbeitsgericht) was also unsuccessful.

If the employee is not unable to work as a result of illness – as in this case – medical care or rehabilitation may not be counted as vacation if there is a claim to continued payment of remuneration according to the legal provisions about continued remuneration in the case of illness. Such a claim in respect of people on statutory insurance requires that the outpatient care is approved by the social service provider and is carried out in a facility of medical prevention or rehabilitation within the meaning of section 107 para. 2 of the German Social Insurance Code 5 (SGB V). In the present case the Federal Labour Court decided that the last requirement was not fulfilled: The health resort centre and wellness centre on the island did not constitute a facility for medical prevention or rehabilitation within the meaning of these provisions. According to the Federal Labour Court, treatment in a “similar facility” was not enough. Therefore the appeal of the plaintiff was unsuccessful.

The Federal Labour Court also clarified that only the treatment itself had to be carried out in a facility for medical prevention or rehabilitation whereas the place of accommodation or where the employee takes his meals was insignificant.