The Düsseldorf Regional Labour Court (Landesarbeitsgericht, LAG) has ruled that a “Corona quarantine” during ongoing leave does not automatically lead to the subsequent granting of leave pursuant to section 9 of the Federal Leave Act (Bundesurlaubsgesetz, BurlG) – LAG Düsseldorf, 7 October 2021, docket number 10 Sa 867/21.

1. Facts

The plaintiff was on authorised leave when she tested positive for the Sars Cov-2 virus. The health authority issued a notice ordering quarantine and also stated that the plaintiff was now considered sick in the sense of section 2 no. 4 of the Infection Protection Act (Infektionsschutzgesetz, IfSG). However, the plaintiff did not have herself examined for incapacity to work. Nevertheless, she holds the view that the days of leave spent in quarantine (10 in total) should be credited to her under section 9 BurlG. She therefore sought a declaration that she was still entitled to 10 days of leave for the year 2020.

The Labour Court dismissed the case. The plaintiff continued to pursue her claim on appeal.

2. Ruling

The LAG ruled that the plaintiff was not entitled to the requested declaration. Section 9 BurlG distinguished between illness and incapacity for work: Not every illness led to incapacity for work. However, the plaintiff had not provided evidence that she was unable to work. In particular, the official notice stating that the plaintiff was ill within the meaning of section 2 no. 4 of the Infection Protection Act was not sufficient for this purpose, so the court.

An analogous application of section 9 of the Federal Holiday Act (BUrlG) was also out of the question, because the employer owed only release from work and payment of holiday pay within the scope of the holiday entitlement and not a “holiday success” (for example, the possibility to travel, etc.). Events that subsequently interfere with leave are part of the personal risk of life and fall within the employee’s sphere of risk, the court expressed. The legislature had regulated exceptions in sections 9, 10 BUrlG. There was no comparable interest in section 9 BUrlG, which makes the aforementioned exception in the case of incapacity for work due to illness. It could not typically be assumed that holidays could not be restful in the case of a Covid 19 illness, since mild courses were also possible. Moreover, recovery was also possible in quarantine.

Due to the legal question of whether illness with COVID-19 without certified incapacity for work allows an analogous application of section 9 BurlG, the LAG allowed an appeal to the Federal Labour Court without it being apparent that this is pending.

3. Conclusion

The decision is to be welcomed. Not every illness leads to incapacity for work. No exception can be made to this in the case of Covid-19. In addition, the quarantine order cannot play any role in this context: Quarantine does not necessarily prevent recovery, nor does it lead to incapacity for work. Even if the employee cannot perform his or her work in the home office, in the case of an officially ordered quarantine it is not the illness that leads to incapacity for work, but the official order. In this case, the employee is sufficiently protected by the compensation claim under section 56 IfSG.