Continued payment of wages practice questions

Continued payment of remuneration – Practical iesSeptember 2017 – Six weeks of continued payment of remuneration, that sounds simple at first. How to proceed when the devil is in the details, we explain in our continuation practice questions.

Last month we discussed the legal requirements for continued payment of wages and the duration and amount of the entitlement. This month we will deal with questions that arise again and again in the practice of continued payment of wages.

Different illnesses one after the other

It is quite possible that an employee is incapacitated for work due to several illnesses in succession. Then there is an entitlement to up to six weeks' continued payment of remuneration for each of these illnesses. This also applies if the second illness immediately follows the first one.

Example: the employee first has a severe flu and is absent for 4 weeks. On the very second day of resuming work, he suffers a slipped disc and is absent for another 6 weeks. In this case, there are two different cases of incapacity for work, because the employee actually worked between the two illnesses.

The situation is different if the employee contracts another illness (the herniated disc) during his first illness (the flu). The "principle of the unity of the case of incapacity" developed by case law then applies. What is meant by this is that the six-week period is linked to the inability to work as such and not to the illness. The Federal Labor Court confirmed this again just last year (25.05.2016 – 5 AZR 318/15).

Multiple incapacity to work due to one illness

The situation is different if, within twelve months of the onset of the first incapacity for work due to the same illness, the employee is again incapacitated for work. Then the previous incapacity for work is counted towards the further entitlement to continued payment of remuneration.

An exception to this is regulated by § 3 para. 1 EFZG: The entitlement remains despite renewed incapacity for work due to the same illness in the full amount of six weeks if there are at least six months between the two periods of absence in which there was no incapacity for work due to this illness.

Example: an employee suffers from a heart problem. It is therefore from the 26. December to 31. January sick leave, wages continue to be paid. On 20. July he is again incapacitated for work for several weeks due to the same illness.

Entitlement to continued payment of wages now only exists for one week (more precisely: for five calendar days), because the five weeks (more precisely: 37 calendar days) of the first illness are taken into account. Reason: Between the 26. December. The 20. July there are no 12 months, but between 31. January. The 20. July not six months.

The entitlement to sick pay

If an employee is incapacitated for work or is an inpatient in a hospital, preventive care or rehabilitation facility, he or she is entitled to sick pay in accordance with sections 44 to 51 of the German Social Code Book V.

However, this entitlement is suspended as long as the employer is obliged to continue to pay wages. Only when the employee is no longer entitled to continued payment of wages does the health insurance fund have to pay sick pay.

The amount of daily sick pay depends on the employee's income. It amounts to 70 percent of the gross salary (the so-called standard salary), but not more than 90 percent of the net salary.

From the lower of the two values, the employee contributions to the statutory social insurance are deducted, with the exception of contributions to health insurance.

Reduction of special payments

It is permissible to reduce special payments such as vacation pay or Christmas pay due to illness. The legal basis for this is found in § 4a EFZG. However, a reduction is only possible if there is a corresponding agreement in the employment contract, a company agreement or a collective agreement.

The legislator has left open the question of how to calculate the average annual remuneration per working day.

Reimbursement from the U1 pay-as-you-go system

If a company participates in the U1 pay-as-you-go system because it regularly employs no more than 30 employees, the employer receives a certain percentage of the continued payment of wages from the health insurance fund in the event of illness. According to § 1 AAG, this amounts in principle to up to 80% of the remuneration paid, including the employer's social security contributions.

However, the health insurance funds can stipulate a lower percentage by statute (§ 9 AAG). Therefore, the actual reimbursement depends on where the sick employee is insured.

Continued payment of remuneration during rehab stay

Even if the employee has been granted a stay at a health resort, he or she is generally entitled to continued payment of wages. The regulations of the EFZG are applied to spa-. Cure procedure applied analogously to a large extent.

Entitlement to continued payment of wages exists if a measure of medical care and rehabilitation is involved and this has been approved by an institution of statutory pension, health or accident insurance or another social benefit institution. In addition, the measure must be carried out in a preventive medical care or rehabilitation facility.

So-called mother/father-child cures are treated like a stay in hospital. The father or mother who has been released by the employer for the spa stay is entitled to continued payment of wages for this period.

Child sick – time off work and continued payment of wages

Employees are entitled to continued payment of wages if they are unable to perform their work activities for a "relatively insignificant period of time". This provision, which is anchored in Section 616 of the German Civil Code (BGB), applies, for example, if a child belonging to the household is ill (and has to be cared for at home).

What is to be understood by a relatively insignificant time is not clearly regulated. Often the regulation of § 45 SGB V is referred to, in which a period of up to ten days is mentioned.

Employers can contractually exclude the obligation to pay wages in accordance with § 616 BGB. Then there is no entitlement to continued payment of wages if the child is ill and has to be cared for. In this case, the health insurance company will cover the child if he/she is insured with his/her parents. A maximum of 10 working days per year can be claimed for each child, single parents are entitled to 20 working days per year. In total, max. 25 or. 50 working days per year can be claimed.

For trainees, a corresponding entitlement to paid time off to care for sick children arises from sections 3, 19 BBiG. The entitlement to continued payment of remuneration covers up to 6 weeks. In the event of incapacity for work, employees must firstly inform the employer immediately. Secondly, a medical certificate must be submitted (§ 5 para. 1 EFZG). This must also state the expected duration of the inability to work. Must be available on the third day at the latest.

The employer may require however also already from the first day a certificate of incapacity for work, if not straight in the relevant tariff or in the concrete work contract something else is agreed upon. The employee does not have to justify this decision. A reasonable suspicion of previous "sick leave" is not a prerequisite for this, according to the Federal Labor Court (14.11.2012 – 5 AZR 886/11).

And if the "sick note" arrives too late?
If the employee does not call in sick when he would be able to do so, he is absent without excuse. That is usually sufficient for a warning. The same applies if the certificate of incapacity for work is culpably submitted too late.

However, this does not fundamentally change the entitlement to continued payment of wages. This is nevertheless retained and only ends if effective notice is given and the employment relationship ceases.

What the employee may do during incapacity for work?
Anyone who is ill and unable to work must ensure that he is well again as soon as possible and avoid anything that could delay recovery. But does he therefore have to spend the whole day at home?? Is he allowed to do sports or even to go away? Such questions regularly occupy the courts.

In principle, the employee must comply with the instructions of his doctor. If the has prescribed strict bed rest, then the employee may not use the time to go shopping.

If the employee violates his duty to consider not only his own health, but also the interests of the employer, this can justify a termination for conduct-related reasons. This was the view of the Federal Labor Court in the case of an employee who went on a skiing vacation during his medically certified incapacity for work (02.03.2006 – 2 AZR 53/06).

The highest labor judges also considered termination without notice without prior warning to be justified because an employee pursued a secondary activity despite being unable to work (BAG, 26.08.1993 – 2 AZR 154/93). Continued payment of wages in case of illness during vacation

It is not uncommon for an employee to become ill or suffer an accident during his or her vacation and therefore be unable to work. In this case, the employee is generally entitled to continued payment of wages for the days of incapacity for work. It is not deducted from his vacation entitlement.

However, a medical certificate is a prerequisite. Only the days on which the employee was demonstrably incapacitated for work entitle the employee to continued payment of wages and may not be counted towards annual leave (§ 9 BUrlG).

In practice, this has its pitfalls, especially abroad. The doctor must, as stated in the first part, differentiate in his sick note between an illness and an incapacity for work. If a doctor abroad does not know this difference, his certificate will often not meet the legal requirements.

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