14.10.2021 | KPMG Law Insights

Special leave due to storm damage? – What you need to know now.

Special leave due to storm damage? – What you need to know now.

The living room is knee-high in water, the bedroom is full of mud, and the basement is no longer accessible at all. This or something similar is the situation in many of the houses and apartments affected by the flood disaster. Among other things, those affected are busy with the cleanup and have to take care of the insurance, so the job takes a back seat for the time being. But are you allowed to stay away from work in such a case? If so, for how long? And what about payment then? These questions are not only asked by employees in the private sector, but also by civil servants in the public sector.

Of course, it is possible to use a few days of annual leave for such a case. However, if employees are unable or cannot reasonably be expected to come to work through no fault of their own (cf. Section 616 of the German Civil Code), they are entitled to paid special leave. Special leave is a form of leave granted for a relatively insignificant period of time for reasons inherent in the person of the employee. However, the right to special leave may (permissibly) be excluded or limited by employment contract. A look at your own employment contract will help here. The period for which the special leave is to be granted is generally at the discretion of the employer.

An entitlement to special leave may arise for federal civil servants under the Special Leave Ordinance. This ordinance regulates entitlements to special leave and the respective duration. The regulation also specifies the conditions and events under which such leave is to be paid. Special leave is to be granted to federal civil servants in accordance with Section 21 SUrlV, for example, in the event of the birth of one’s own child or the death of a close person. The case of a severe weather disaster is not mentioned by name in the ordinance, but may be covered under sec. 22 para. 2 SUrlV fall under. According to this, with the approval of the Federal Minister of the Interior, “special leave may be granted for important personal reasons with continued payment of salary.” Such “important personal reasons” can also include the consequences of an extreme snowfall or, precisely, a storm, as can be seen from a circular issued by the Ministry of the Interior in 2019. However, it is necessary that the prevention of the performance of the work is related to the protection of one’s own property threatened by the flood. The duration of the special leave is again at the discretion of the respective service authority.

North Rhine-Westphalia and Rhineland-Palatinate in particular were hit hard by the flood. The ordinances there (Freistellungs- und Urlaubsverordnung NRW – FrUrlV NRW and Urlaubsverordnung Rheinland-Pfalz – UrlVO RLP) also contain similar regulations. However, there is no nationwide uniform regulation regarding special leave for civil servants affected by the storm. It can be assumed that the prevention of work due to flood damage is covered by this. However, this is at the discretion of the respective employer. This means that they decide whether and to what extent to grant individuals time off work so that they can attend to their personal affairs.

Time off from work or duty is not only considered for clean-up work, but also, for example, if the route to work cannot be taken due to storm damage or can only be taken at unreasonable expense.

In the current situation, it can be assumed that both employers and service providers will grant sufficient time off work not only to those affected by the storm damage, but also to helpers. It is, of course, advisable to inform the employer or principal about the personal situation as early as possible and to find a joint solution in this regard.

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