Celebrating sickness and collecting wagesCelebrating sickness is about the cases where the employee receives his salary although he does not provide any service. This refers to the continued payment of wages.
What is the employer allowed to do when employees celebrate sick?
For employees and employers the basic principle is yes: wage or salary against performance. In most cases, this is also regulated in the employment contract. This blog post is about the cases where the employee receives his salary, although he does not perform any work. This refers to the continued payment of wages or the so-called sick leave.
We have here 7 different cases in which the continued payment of wages, i.e. wages without performance is possible.
1. continued payment in case of illness, according to § 3 EntgFG 2. Continued payment for vacation, according to §§ 1,3 BUrlG 3. Continued payment of wages during public holidays, according to § 2 para.1 EntgFG 4. Continued payment of remuneration in case of educational leave (here, the legal regulations of the individual federal states apply) 5. Continued payment of wages in case of illness of the child, according to § 616 BGB 6. Sickness benefit from the health insurance fund in the event of illness of the child, according to § 45 SGB V and 7. Continued payment of remuneration in the event of operational risk and default of acceptance (this refers to the impossibility or refusal to perform work for which the employer is responsible), in accordance with Section 615 of the German Civil Code (BGB)
Who is entitled to continued payment of remuneration…?
…in case of illness and how much will the employee get paid?
First of all, according to § 3 EntgFG, anyone who is unable to work without being at fault is entitled to continued payment of remuneration in the event of illness.
What is the legal consequence? There is a legal right to continued payment of remuneration at 100% by the employer for a maximum of 6 weeks (i.e. 42 calendar days) due to one and the same illness.
And what if the employee is still sick after 6 weeks?
Following the 6-week continued payment of wages by the employer follows: Either a sick pay from the health insurance according to paragraphs 47 and 48 SGB V, in the amount of 70% of gross earnings, or. max. 90% of the net income, for a maximum of 78 weeks in each three-year period, calculated from the day of the beginning of the incapacity for work. If we subtract the first 6 weeks, then there are 72 weeks left. Or the injury benefit from the employers' liability insurance association, i.e. the statutory accident insurance according to §§ 45, 46, 47 SGB VII in the amount of 80% of the regular salary.
What if the worker gets another new illness during his existing illness?
For example, if an employee is on sick leave for six weeks due to illness A, and he gets another illness B in the sixth week, then according to case law, the principle of unity of the case of incapacity occurs. That means, the employee has then only the Entgeltfortzahlungsanspruch against the employer of 6 weeks. In this example, the employee still has the right to sick pay from the health insurance company.
Yes, and in which case a new claim for continued remuneration for 6 weeks would arise against the employer? To stay with the example. If the illness A was demonstrably finished. Then only the new illness B has occurred. That means, when the illness A is finished, then the employee is yes again able to work and appears to the work place to work. If he then works for a few days and then the new illness B occurs, then the new 6-week period for payment of remuneration by the employer begins. Employee with illness A is on sick leave until a Friday. On Sunday the new illness B occurs? The company is closed on weekends and he can't go to work, even though he was fit for work on Saturday. If illness A ended on a Friday and illness B occurred on Sunday, then the employee was fit for work on Saturday, even though he did not have to work. According to case law, the new 6-week period for payment of wages by the employer begins on Monday. By the way, the most recent case law is the BAG, ruling v. 11.12.2019 with the file number: 5 AZR 505/18
Are there any other requirements for continued payment of wages in the event of illness??
The first condition for being sick, the fulfillment of the 4-week waiting period according to § 3 para. 3 EntgFG. This means that during the first four weeks of an employment relationship, the employee is not entitled to continued payment of remuneration from the employer. During this time, the responsible social insurance agency (i.e. the health insurance fund or the employers' liability insurance association) pays the sickness or injury benefit in the event of illness.
But attention! An employee who is incapacitated for work during the first four weeks after the beginning of the employment relationship is still fully entitled to continued payment of wages from the employer for a period of 6 weeks after the end of the waiting period.
The second requirement is: no gross negligence of the disease by the employee. These could be, for example:
– Traffic accident when driving under the influence of alcohol, – Traffic accident when running a "red light", – Traffic accident when not wearing a seat belt. – Injury in brawl provoked by the employee. – Dangerous sports where safety regulations are not observed.
The employer does not have to pay continued remuneration in the event of self-inflicted incapacity for work in the event of illness.
The third condition is the immediate notification of the inability to work, as well as sick leave from the 4th day. day according to § 5 EntgFG. The employee must immediately notify the employer of the inability to work and its expected duration gem. § 5 Abs. 1 EntgFG. share.
The presentation of the medical certificate has to be made at the latest on the 4. day to be made. However, the employer is entitled to require the presentation of the medical certificate for all employees from 1. Sick day, without factual justification, according to. § 5 para. 1 S.2 EntgFG to require.
What if the employee does not fulfill the duties just mentioned?
There are legal consequences for violation of the duty to notify when celebrating illness. This may result in a warning and, in the event of a repetition, in dismissal for conduct on the part of the employee.
As long as the employee does not present a certificate of incapacity for work, the employer, according to § 7 para. 2 EntgFG, no remuneration to be paid for this period either. However, the employer must pay retroactively after submission of the sick report.
What activities may the employee perform during the period of incapacity for work??
Employee may perform any activity during the period of incapacity that does not slow down the healing process. It also does not matter if the employee is not at home during sick leave!
In some cases, the employer doubts whether the employee is ill. Then the employer can, according to § 275 SGB V.