During their employment in Germany, posted workers are entitled to paid leave. The number of leave days depends on the number of working days in Germany. After a period of 12 working days, workers are entitled to one leave day for each such period. Such entitlement is applicable to an entire leave year (= calendar year), i.e. 30 annual leave days (= working days).
As Saturdays, Sundays and public holidays are not regarded as working days, workers do not have to take any leave to enjoy some leisure time on such days.
The decisive factor for determining the leave days that workers are entitled to at a specific point in time are the exact number of employment days. The basis for calculation is the calendar year.
Any leave not taken yet by the end of the leave year remaining days of leave will be carried over to the following calendar year. A subsequent carry over to the calendar year following that year is not permitted.
For handicapped people and adolescents there are diverging statutory regulations for annual leave. In particular, § 8 nos. 2.2 and 4.1 as well as no. 11 BRTV are applicable.
The leave that workers are entitled to during the time of posting is determined by the days of employment in Germany. All calendar days of the year are in principle deemed to be days of employment when working for a construction company. This does also include Saturdays, Sundays and public holidays. According to the Leave Fund Scheme, a working relationship or employment ends as soon as a worker has terminated his work on a construction site in Germany.
Not deemed to be days of employment are days
- on which a worker of a company headquartered outside Germany worked on construction sites outside Germany;
- was absent from work without excuse (days without pay);
- on which a worker got unpaid leave if such leave exceeded 14 calendar days. For example, if a worker takes four weeks of unpaid leave, the employment days have to be reduced by 28 days (4 weeks × 7 calendar days).
The employment days have to be determined separately for each calendar year.
To simplify such calculation, a full month is always considered to consist of 30 employment days.
A worker started work on a construction site in Germany on 20 May and worked until 31 December of that calendar year. During this period he was absent from work without excuse for five working days and had 21 successive days of unpaid leave.
How many working days does that make?
20 May to 31 May
= 12 employment days
1 June to 31 Dec.
= 7 months
7 x 30 calendar days
= 210 employment days
= 222 employment days
|less days of absence||= 5 employment days|
|less unpaid leave||= 21 employment days|
= 196 employment days
The worker has thus worked on 196 days.
By taking the employment days as a basis, the days of leave a worker is entitled to in a calendar year can be determined.
The worker is entitled to one day of leave after every 12 employment days (= leave divisor 12).
The days of leave an individual worker is entitled to are calculated by dividing the employment days by 12 (leave divisor). Only full leave days are applicable. Fractions of leave days are rounded down accordingly during the current calendar year.
Formula for leave days:
(total number of employment days) divided by (leave divisor 12) = leave days
A worker has been working on a construction site in Germany since 1 April.
He would like to take leave from 21 October onwards. How many leave days can he be granted?
|1 April to 31 October||= 7 months|
|7 x 30 calendar days||= 210 employment days|
|(210 employment days)/12||= 17.5 leave days|
As leave days are rounded down to full days during the current calendar year, the worker is entitled to 17 days which he can take from 21 October onwards. Leave days are also deemed to be employment days.
Any leave not taken by the end of a leave year is carried over to the following year. Fractions of at least half a leave day will be rounded up.
- Determine the employment days accumulated in Germany in the past calendar year.
- Divide employment days by leave divisor 12 in order to determine the leave days acquired during that year.
- Round up fractions of leave days amounting to at least half a leave day to full leave days.
- Deduct any leave taken from the leave days acquired in the past calendar year.
- The result shows the days of leave remaining. They are to be carried over to the following year. The worker can take the remaining leave in the following year.
A worker worked on a construction site in Germany from 1 April to 31 December. During that calendar year his employer granted him 16 days of leave. The worker has continued working on construction sites in Germany beyond 31 December. What is the remaining leave to be carried over to the following year?
1 April to 31 December
= 9 months
9 x 30 calendar days
= 270 employment days
22.5 leave days acquired
rounded up to 23 days
less 16 leave days already granted
7 days of leave remaining
The worker is entitled to 7 days of leave to be carried over to the following year and can be taken by 31 December of that year.
Workers are entitled to take leave during their posting in Germany. Once a worker is entitled to at least one day of leave, he can take it after prior consultation with his employer.
In the event that a worker has terminated his posting period in Germany, he can retain the remaining leave acquired and take it during his next posting to Germany. Such leave is to be granted by the employer that is posting him to Germany next.
If there is no further posting, the worker can apply with SOKA-BAU for payment in lieu of leave.
Leave entitlements are forfeited by the end of the year following the year in which entitlements were acquired. For example, leave entitlements for 2017 are forfeited by the end of 2018. Therefore, the employer has to grant his worker any leave days remaining in 2017 by 31 December 2018. After that date the worker can no longer claim any leave or leave allowance from his employer. Once the worker has forfeited his leave entitlement, he can also no longer claim any pay in lieu of leave from SOKA-BAU. However, he can still claim for compensation for the leave forfeited.
In the event that an employer has already granted a worker more leave than he had acquired during his employment in his home country in a calendar year, the worker was given advance leave. Such advance leave will be deducted from his leave entitlement in Germany and the respective leave allowance will be reduced accordingly.
If a worker has not used up his days of leave by the end of a calendar year, such days will be carried over to the following calendar year. Fractions of leave days amounting to at least half a day of leave will be rounded up to full days of leave.
If a worker continues to stay at a construction site in Germany in the new calendar year and wishes to take his leave then, he first has to take the remaining leave of the previous year. Such remaining leave can be taken by the worker until the end of the new calendar year. Thereafter, it will be forfeited vis-à-vis the employer. The worker will get compensation for any leave forfeited. To ensure that any leave of the previous year is not forfeited, such leave has to be granted by the employer first, i.e. before any leave for the current year is granted.
If a worker changes to another construction company within Germany, he can claim any accumulated leave from his new employer. It is particularly beneficial that the worker can ‘retain’ his leave entitlement within Germany, regardless of whether the company is headquartered in Germany or abroad.
To ensure that the worker can effectively claim his leave entitlement from his new employer, his previous employer has to notify SOKA-BAU of the termination of their employment relationship. The new employer will then receive a current overview of the (worker’s account statement) issued by SOKA-BAU indicating whether the worker was entitled to leave when changing employment, and if so, how many days are concerned.
In the case of death of a worker, his entitlements to leave, pay in lieu of leave or compensation for leave will pass to his heirs. Such claims are to be lodged with SOKA-BAU. Please contact SOKA-BAU in this respect.