As Eid approaches, this article gives guidance for employers on dealing with time off for religious holidays in Germany.
Many companies remain closed on Easter Monday, Ascension Day or Christmas Day. Employees of all denominations receive a paid day of holiday. There are legal regulations for Christian holidays, but what applies to Yom Kippur, Eid and other religious holidays?
While there are legal holidays for many of the most important Christian festivals and employees are allowed to stay home with pay, this does not necessarily apply to religious holidays for other religious communities. Some workers may find this discriminatory.
Employers have to find their way around what the legal regulations are and what they can decide individually. From 12 to 13 May 2021, Muslims celebrate Eid, the traditional breaking of the fast at the end of Ramadan. What should employers take into consideration if employees want to have that day off for religious reasons? This article aims to help employers deal with this sensitive issue in the right way.
The constitution stipulates rest from work for state-recognised public holidays, which are to be paid according to s2 of the Continuation of Remuneration Act (EFZG). At the state level, the legislature is obliged to recognise an appropriate number of church holidays according to state tradition and the composition of the population. Depending on the state, there are a number of Catholic and Protestant holidays on which employees have the right to be absent from work and still be paid, even in the private sector.
Although a considerable part of the population belongs to other denominations, there are virtually no regulations dealing with other religious holidays. In North Rhine-Westphalia, the Public Holidays Act stipulates that members of the Jewish faith may be absent from work on New Year's Day and on Yom Kippur, the Day of Atonement, and the evening before, stipulating that these days are non-working days. However, the Public Holidays Act explicitly states that the employer is not obliged to pay for this time off. There are no state-recognised public holidays of other religions in North Rhine-Westphalia or in other federal states.
Paid time off for religious festivals as the employee is ‘temporarily prevented from working'?
Employees may request paid time off to observe a religious festival. This is because s616 of the German Civil Code (BGB) provides that workers are still entitled to remuneration if they are temporarily prevented from performing their work through no fault of their own. The Basic Law gives the undisturbed exercise of religion constitutional protection. Therefore, the argument that a religious festival constitutes a temporary means the employee is temporarily prevented from working through no fault of his or her own is not entirely far-fetched. However, employers could object to this argument on the basis of another constitutional principle: the principle of equal treatment. This is because non-believing employees could not claim ‘additional' paid time off and would be disadvantaged accordingly because of their lack of religious affiliation.
How does the law reconcile employer and employee interests?
Employers have a legitimate (and constitutionally protected) interest in ensuring the smooth running of their business. How can this be reconciled with employees' right to practice their religion undisturbed?
The high value placed on religious freedom should probably mean that employees are in principle entitled to time off on religious holidays. However, employees are not entitled to be paid for these days off. The employer's interests are sufficiently taken into account in this scenario, because it is possible to refuse the employee time off if the company's operations do not permit it, meaning there are significant reasons for not granting time off.
If employees do not want to lose their entitlement to pay, the law ultimately only provides for the possibility of taking leave. A leave request could then only be refused by the employer for substantial operational reasons.
Are there other solutions?
A somewhat ‘lower-threshold' solution might be to allow for religious holidays through structured work scheduling. In shift systems, non-Christian workers could work on Christian holidays and on Muslim, Jewish or other religious holidays, Christians could take their shifts. In this way, workers who wish to celebrate a religious festival could be scheduled for a free shift.
Should employers wish to give employees time off with pay voluntarily, this should not be decided lightly. The following points in particular should be taken into consideration:
- Any favourable treatment on the part of the employer can lead to the creation of a company practice if it is granted unconditionally. Therefore, any paid time off should either be subject to a right for the employer to revoke it, or the voluntary nature of the arrangement should be expressly stated.
- Employers must keep the principle of equal treatment in mind. If paid time off is granted to an employee, other employees who wish to celebrate a religious festival should also be able to rely on it. To prevent discrimination against non-religious workers, employers could consider allowing a ‘flexible holiday'. This could then be taken by all workers and used either for a religious festival or as an additional day of leave.
- In companies with a works council, the works council must also be involved in collective measures, especially if remuneration principles are affected. If the employer is bound by collective agreements, it is important to check the regulations in these, and whether or which works council regulations are possible under them.
The law currently only provides for paid time off for religious holidays for Christian festivals. However, there should also be a right to unpaid time off for other religious holidays such as Yom Kippur or Eid, as long as there are no important operational concerns that conflict with this.
In order to avoid conflicts and ensure the business can operate smoothly, it is advisable to deal with holidays that are relevant to the workforce at an early stage and to get employee representatives on board. This helps to ensure an amicable arrangement can be reached.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.