Repetition is the mother of learning or how to carry over unused leave
At the beginning of 2021, significant legislative changes occurred in the area of leave. One of these changes is the option to carry over unused leave to the following calendar year based on written request of the employee. In addition to the option of carrying over leave by law, which occurs automatically, or by the employer’s decision, a third option has been added – the employee’s request. As the issue of carrying over unused leave is not entirely clear to many employers and the topic is very relevant as the end of the year approaches, we summarise the basic information on the topic below.
For the sake of completeness, please note that sick days and other similar days off provided purely as an employee benefit under a scheme other than leave are not subject to these rules.
Who determines the duration of leave?
The employer must determine the period of leave, so that the employee would take it in the calendar year, in which his right to take leave arose. The employer must give the employee at least 14 days’ written notice of such designated leave, unless a shorter notice period is agreed with the employee. The employee may also ask the employer to take leave at any time. The employer must express agreement to the taking of leave at the employee’s request, but this does not mean that the employer must comply with the request.
The employer must ensure that the employee takes the full amount of leave during the year. Leave may be carried over by the employer to the next calendar year only if the use of the leave is prevented by obstacles on the part of the employee or by urgent operational reasons, or if the employee himself requests the carry-over of a part of the leave. However, this does not mean that untaken leave would cease to exist (see below).
What is the situation with carrying over untaken leave?
In the event that leave cannot be taken in the respective calendar year due to obstacles to work on the part of the employee or urgent operational reasons as provided for by law, such leave shall be carried over to the next calendar year without further ado.
It is also possible to carry over part of the leave based on an individual written request of the employee – only leave exceeding 4 weeks (6 weeks for teaching and academic staff of universities) can be carried over in this way, taking into account the legitimate interests of the employee. Thus, if an employer provides its employees with, for example, 5 weeks of leave, the employee may request in writing that the fifth week of leave be carried over to the following calendar year. If the employer only provides its employees with the basic 4 weeks of leave, carry over of part of the leave on the basis of a written request by the employee is not applicable here.
In practice, it is often the case that an employee has leave left at the end of the year without having been prevented from taking it by obstacles on the employee’s side or urgent operational reasons. Failure by the employer to order the use of the remaining leave by the end of the calendar year contrary to the legislation, and failure by the employee to make a written request for the leave carry over (in cases where it may apply), or failure by the employer to comply with such a request, does not mean that the employee has forfeited the leave. In this case too, the leave carry over is automatic by law.
However, the employer commits an administrative offence because by doing so, it violates its legal obligation to determine the use of leave until the end of the relevant calendar year, for which the employer is liable to a fine of up to CZK 200,000 from the Labour Inspectorate.
By when must the carried-over leave be taken?
The employer must determine the use of the carried-over leave so that it is used by the end of the following calendar year at the latest, i.e. leave carried over from the year 2022 must be used by the end of the year 2023. If the employer does not determine the time of use of the carried-over leave by 30 June of the following calendar year, i.e. for carry-over leave from 2022 to 30 June 2023, the employee will also have the right to determine when the leave will be taken. In this case, the employee must, like the employer, give at least 14 days’ written notice of the leave, unless the employee and the employer agree on a different period of notice.
If the carry-over leave cannot be taken even by the end of the following calendar year, i.e. for carried over leave from 2022 to the end of 2023, because the employee has been declared temporarily unable to work or is taking maternity or parental leave, the employer must determine the time the carried over leave is to be taken after these impediments have ended.
Can untaken leave be reimbursed?
Reimbursement of untaken leave is only permissible in the event of termination of the employee’s employment. If the employment relationship continues, the employer must not provide the employee with financial compensation or wage replacement for untaken leave instead of taking leave.
If you are uncertain about anything relating to leave carry over, please do not hesitate to contact us and we will be happy to advise you.
Author: Veronika Odrobinová, Martina Šumavská