Der Sommer steht unmittelbar vor der Tür. Daher sprechen Isabel Firneis und Magdalena Ziembicka über das Top-Thema der Saison – Urlaubsrecht in Österreich. 

Vacation

Episode summary

With summer just around the corner, Isabel Firneis and Magdalena Ziembicka talk about the hot topic of the season – vacation. In addition to the basics of annual leave in Austria, they address questions frequently asked both by employees and employers.

Length of annual leave

Employees are entitled to 5 weeks of annual leave per year. After completing 25 years of service the entitlement increases to 6 weeks, subject to certain conditions. Collective bargaining agreements or individual contracts can provide for a longer annual leave. In practice, we see that additional annual leave is provided for in employment contracts more and more frequently, as vacation has increasingly become an important factor in work-life balance considerations.

Our recommendation is that if an additional week of annual leave is agreed to in an employment contract, it should be expressly stated that the statutory entitlement to a 6th week of vacation following the 25th year of service shall then be considered as fulfilled.

Commencement and expiration of annual leave

In Austria, the annual leave entitlement is by default calculated on a working year basis (i.e. from the date the employment commenced), and not on an calendar year basis. In the first year of service, the employee acquires the full annual leave entitlement after 6 months of work. Until then the vacation is calculated on a pro-rata basis. In further years of service, an employee is entitled to the full annual leave at the beginning of the working year.

An agreement on a calendar year calculation is possible, which requires the conclusion of a works agreement or, in businesses without a works council, a written agreement with an individual employee. However, such a switch is often disadvantageous for the employer, given that additional vacation days are likely to arise. For example, if an employee joins on 15 June and the switch is agreed upon already in the first year of employment, she or he will be entitled to 5 weeks of annual leave for that year.

Vacation entitlements expire two years after the end of the year in which they arose (which is usually the year of employment). This means that an employee actually has a total of three years to use up their vacation days. In practice, this often leads to the accumulation of vacation days.

From an employer’s perspective, the problem of employees accumulating a high number of vacation days is further intensified by newest case law: vacation entitlements are not time-barred, even if the limitation period has expired due to the employer not proactively informing the employees about the imminent expiry of the limitation period and inviting the employees to use their vacation days. In light of these new developments, more proactive vacation management efforts by employers will be necessary in the future, if they want to argue that certain vacation entitlements are indeed time-barred.

When one can take vacation

In general, when an employee uses their annual leave must be agreed between the employer and the employee. 

Employees have very limited possibilities to unilaterally enforce their annual leave. For instance, every employee is entitled to one day of vacation of their choice, where an approval of the employer is not needed (so-called “personal day”). The employee must however give notice of this day at least 3 months in advance.

Otherwise, the employer has a right to refuse agreeing on a vacation. If an employee takes leave without the employer’s approval, she or he risks dismissal for cause.

Similarly, an employer cannot force an employee to take vacation, even when the employee is on garden leave during their notice period. However, a company-wide vacation can be agreed to in employment contracts for specific periods of the year and typically for up to two weeks. Usually these occur during quieter summer months. 

Illness during annual leave

In the unfortunate event that an employee falls ill or has an accident during her or his vacation, in case the incapacity to work last more than three calendar days the corresponding days falling on a workday are not deducted from the vacation entitlement. The employee must however provide the employer with the required information and documents i.e. corresponding medical certificate etc., immediately after returning to work. 

Cancelling or changing annual leave

If a vacation has been agreed to between the employee and the employer, this agreement is binding for both parties. The vacation agreement can only be cancelled or amended by mutual agreement. A unilateral amendment or rescission of the vacation agreement is generally not permitted. A rescission would only be permitted in rare cases where there is a good cause present, taking into consideration other party’s interests, which is subject to strict requirements. 

Dismissal during vacation

An employer can dismiss an employee during vacation. However, the practical issue in such case is, how to deliver the notice of termination. The notice period only begins when the employee actually receives the notice of termination. Therefore, receipt of notification by the employee is important. If, for example, due to contractual agreement or specific legal requirements a written notice is required, physically delivering the notice letter may prove difficult if the employer does not know the exact location where the employee is spending his or her vacation.