Continued payment of wages in the event of illness lawyer labor law berlin blog

The employer is – if the employment relationship has already existed for longer than 4 weeks – to the so-called. Continued payment of wages in the event of illness (often incorrectly referred to as "sick pay") obligation.

further illness after 6-weeks

Sometimes it happens that the employee is healthy and able to work again for a short time after the expiration of the 6 weeks and then again falls ill after a short time. If this is a other illness, then the employer must again claim continued payment of wages in the event of sickness after the Continued Remuneration Act afford.

changing illnesses after 6 weeks-period

The question is, however, whether in the case of a short recovery of the employee or in the case of alternating illnesses during a period of illness, it is not presumed that the two illnesses are related, then there is no Continued payment of wages.

Decision of the Federal Labor Court

In addition now this Federal Labor Court In a new decision:

The employee was employed by the employer/defendant until 31. July 2017 employed as a skilled worker in the care of the elderly.Since the 7. February 2017 she was unable to work due to a mental illness.

The defendant employee continued to pay wages in the event of illness up to and including 20. march 2017. Thereafter, the employee received sick pay until 18 May 2017. May 2017.

On 19. May 2017, the employee underwent an operation due to a gynecological condition (other illness).

The employee's doctor certified that she was unfit for work on 18 May 2017. May 2017 as "first certificate" an incapacity for work of 19. May 2017 until 16. June 2017 and by follow-up certificate a continued inability to work up to and including 30. June 2017.

In the period from 19. May until 29. June 2017 neither from the defendant continued payment of wages (i.e. after the surgery) nor from her health insurance company sick pay.

The employee then sued her employer for payment of sick pay for the above period in the amount of 3.364.90 Euro gross plus interest.

In support of her appeal, the employee argued that from 19. The employee had been incapacitated for work on May 1, 2017 due to a new condition. While the inability to work due to her mental illness on 18. May 2017 had ended.

The defendant employer filed a motion to dismiss the action, arguing that under the circumstances it should be amed that there was a single case of incapacitation. The employee had therefore only been able to claim continued payment of wages in the event of illness once for a period of six weeks.

The Labor Court upheld the claim, the Lower Saxony Regional Labor Court (ruling of 26 April 2009) upheld the claim. September 2018 – 7 Sa 336/18) -has dismissed the claim – after taking evidence through the hearing of three doctors.

Decision of the Federal Labor Court

The plaintiff's appeal had been brought before the Fifth Senate of the Federal Labor Court (Federal Labor Court, ruling of 11. December 2019 – 5 AZR 505/18) is not successful.

In the press release no. 45/19 of 11.12.2020, the Federal Labor Court states:

The statutory entitlement to continued payment of remuneration in the event of illness is also limited to a period of six weeks if, during existing incapacity for work, a new illness based on a different underlying condition occurs which also results in incapacity for work (principle of unity of incapacity). A new entitlement to continued payment of wages only arises if the first sick leave had already ended at the time when the further illness led to the inability to work.

If the employee is incapacitated for work due to illness and this is followed in close temporal connection by a further incapacity for work certified by way of the "first certificate", the employee must, in the event of a dispute, state and prove that the previous incapacity for work had ended at the time of the occurrence of the further incapacity for work. The plaintiff did not succeed in this. The Regional Labor Court took comprehensive evidence by questioning the doctors treating the plaintiff. According to this, it could not be established that a uniform case of prevention did not exist. This applies all the more as according to the result of the taking of evidence an examination of the plaintiff by the attending physician was not taken into account in the determination of the up to and including 18. May 2017 certified incapacity for work did not take place.


This decision is hardly known by many employees. Many still believe that one can simply after the expiration of the 6 weeks – without taking up work – immediately with another diagnosis be written sick. This does not work in most cases. The illnesses may not "overlap".

Decisions of the courts on incapacity for work

Communicate that:


LAG Berlin-Brandenburg: Continued payment of wages in case of illness – Sunday supplement can be excluded!

The employee/plaintiff worked for the employer at a Berlin airport as a passenger inspector. According to her working conditions, the employee was entitled to the sog. Sunday supplement. The collective bargaining agreement for security personnel at commercial airports of 11.09.2013 applied to the employment relationship of the parties. There it was regulated – in a very simplified way – that in case of illness no Sunday supplement is paid as continued wage payment.

The plaintiff/employee was then ill for several weeks in 2014. According to her shift schedule, the plaintiff would have had to work on a total of 4 Sundays during the period of her illness.

If the plaintiff had worked – and had not fallen ill – she should have received Sunday bonuses in the undisputed amount of EUR 224. However, the employer did not pay these Sunday bonuses within the framework of continued payment of remuneration in the event of illness.

Since the employer did not voluntarily pay the Sunday surcharges out of court, the employee brought an action before the Berlin Labor Court. The Berlin Labor Court dismissed the plaintiff's action.

The employee then appealed the decision of the Berlin Labor Court to the Berlin-Brandenburg Regional Labor Court.

The LAG Berlin-Brandenburg (ruling of 15.7. Appeal of the employee back. The Federal Labor Court ruled in favor of the employer.

The Berlin-Brandenburg Regional Labor Court stated:

According to §§ 3 Abs.1, 4 para.According to § 1 EFZG, the employer is obliged to continue to pay the remuneration to which the employee would be entitled for the regular working hours applicable to him for a period of six weeks. However, the principle of one hundred percent continued payment of wages is not applicable according to. § 4 para. 4 EFZG amendable. Accordingly, a collective agreement may determine a different basis of assessment of the remuneration to be continued to be paid. Within the scope of application of such a collective agreement, the application of the provisions of the collective agreement on the continued payment of remuneration in the event of illness may be agreed between employers and employees not bound by the collective agreement. The defendant uniformly applies the collective bargaining agreements applicable to it for all employees, so that a deviation is possible per se.

The Federal Labor Court has had to determine on various occasions how the principle of one hundred percent continued payment of remuneration is to be distinguished from the possibility of deviation pursuant to Sec. 4 (2) of the German Labor Code. 4 EFZG.


Applying these principles, the parties to the collective bargaining agreement were allowed to exclude the Sunday bonus from the continued payment of remuneration. The Federal Labor Court allows a deviation through collective agreements with regard to surcharges to be paid. This is justified with the fact that these are paid regularly because of additional aggravations and because of special loads. In fact, such supplements may result from the more detailed circumstances of the work performance or the particular situation of the working time. As a rule, such supplements do not affect the employee's standard of living, as the Federal Labor Court has rightly pointed out.

NoteThe reason that the employee did not receive a Sunday supplement during her illness was solely the exclusion in the collective agreement. The normal case is that during the incapacity for work with a claim to continued payment of wages in the event of illness (6 weeks) the Loss of earnings principle applies. After that, the employee receives the wage that he would have received if he had worked.

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