Illness of employees

Employees are generally entitled to continued payment of wages in the event of illness in the amount of 100 percent up to the duration of six weeks. The legal basis is the Continuation of Remuneration Act (EFZG), which regulates, among other things, the continued payment of remuneration in the event of illness for which the employee is not responsible.

Requirements of the Continuation of Remuneration Act

The prerequisite for the entitlement to continued payment of remuneration is the existence of an employment relationship. This also includes a vocational training relationship, a part-time employment relationship or a marginal employment relationship. The entitlement to continued payment of remuneration in the amount of 100 percent arises after four weeks of uninterrupted duration of the employment relationship. An illness leads to incapacity for work if the employee is prevented by it from performing the work to be done. This also applies if the employee can only work with the risk of aggravation of his condition. Whether an illness also results in incapacity for work depends on the nature of the illness and the service owed under the employment contract. The doctor establishes the inability to work. It certifies in the certificate of incapacity for work. Entitlement to continued payment of remuneration exists only if the illness is not the fault of the employee. Such fault is only to be amed if the employee grossly violates the behavior to be expected in his own interest, for example grossly negligent violation of accident prevention regulations, grossly traffic-incompatible behavior in road traffic. Sports and leisure accidents are generally not considered to be the fault of the employee.

Amount and duration of the continued payment of wages

If the above-mentioned conditions are met, the employee is entitled to continued payment of remuneration in the amount of 100 percent of the remuneration to which he is entitled on the basis of his regular working hours in the relevant period. If the employee works on call according to an agreement with his employer, the average working time of the last three months before the beginning of the incapacity for work is to be taken as the basis for calculating the entitlement. The entitlement to continued payment of remuneration is a gross entitlement: as with normal remuneration, taxes and social security contributions must be paid. The entitlement is valid for a maximum of six weeks. The health insurance company then pays sick pay. If an employee repeatedly falls ill with the same illness within twelve months – calculated from the start of the first illness – the periods of incapacity for work are added together until the entitlement period of six weeks has been used up (continued illness). This does not apply, however, if the employee was unfit for work for more than six months between the individual illnesses or was only unfit for work due to other illnesses. Then the six-week entitlement to continued payment of remuneration arises anew.

Employers who usually do not employ more than 30 employees can be reimbursed by the health insurance fund for 80% of the remuneration paid by way of continued payment of remuneration.

incapacity for work caused by a third party

If a third party has culpably caused the inability to work by a tortious act directed against the employee (e.g. traffic accident), the claim for continued payment of remuneration against the employer exists independently of any claims for damages against the third party. The employee's claim for compensation against the party liable for compensation is transferred to the employer by operation of law (Section 6 (1) of the Continued Payment of Remuneration Act (EFZG)) in the amount in which the employer continues to pay remuneration. The employer's claim against the third party thus includes the gross remuneration plus the employer's share of social security contributions. Pursuant to Section 6 (2) EFZG, the employee has the duty to provide the employer without delay with the information required to assert the claim for compensation.

Obligation to report and provide proof

If an employee becomes incapacitated for work as a result of his illness, he must immediately notify the employer of the incapacity for work and its expected duration. Immediate notification means on the first day of the illness at the beginning of work or in the first hours of work. If the incapacity for work lasts longer than three calendar days, the employee must submit a medical certificate stating the existence of the incapacity for work and its expected duration no later than the following working day. However, the employer may require a medical certificate of incapacity for work at an earlier time under certain circumstances. This is especially true if there is a corresponding contractual agreement. Following the decision of the Federal Labor Court (BAG) of 14.11.2012 (Az 5 AZR 886/11) is now only pronounced the possibility of the employer, which is anchored in the law, to demand a medical certificate already for the first day of illness. In particular, the BAG states in its decision that it is not necessary for the exercise of this right that there is a reasonable suspicion against the employee that he has only faked an illness in the past. For the employer there is the possibility to anchor such an obligation in the employment contracts from the beginning. It should be noted that this right of the employer can still be excluded by means of a collective agreement.

The employee must submit a new certificate if the incapacity for work lasts longer than initially provided for in the medical certificate.

If an employee repeatedly violates his or her duty of disclosure despite prior warning, this can justify ordinary dismissal. In addition, the employer is entitled to temporarily refuse continued payment of wages if and as long as the employee culpably fails to comply with his duty of disclosure.

Since 01.01.In 2016 there is a new form for certificates of incapacity for work. If the employee is receiving sick pay, the certificate can now also contain the exact end date of the incapacity for work. The employee is not legally obliged to inform the employer about this. However, a contractual arrangement is conceivable.

Doubts about the inability to work

If there is any doubt about the employee's inability to work, every employer can demand that the health insurance company obtain an expert opinion from the medical service to verify the employee's inability to work. The Medical Service is an independent institution that cooperates with the health insurance funds. The probative value of a doctor's certificate of incapacity for work can be shaken by a corresponding opinion of the medical service.

The law presumes the existence of doubts if insured persons are incapacitated for work conspicuously frequently and conspicuously frequently only for a short period of time, or the beginning of the incapacity for work frequently falls on a working day at the beginning or at the end of a week, or the incapacity for work has been determined by a doctor who has attracted attention by the frequency of the certificates of incapacity for work he has ied.

Stay abroad

If the employee is abroad at the beginning of his incapacity for work, special rules apply to the obligation to notify and certify. The employee must inform the employer of his/her inability to work in the quickest possible way. If the employee is covered by statutory health insurance, he must also inform his health insurance provider. He must also notify them if the reported inability to work lasts longer than expected. The employee who is incapable of work must immediately notify both his employer and his health insurance fund that he has returned to Germany.

Operational integration management

Employers have a legal obligation to reintegrate employees who are unfit for work as part of the so-called company integration management (BEM). § 167 paragraph 2 SGB IX obliges the employer to carry out a company integration management for employees who are unfit for work for more than six weeks continuously or repeatedly within one year. Whether the incapacity for work is causally related to the workplace is irrelevant. The scheme applies to all employees, regardless of disability. The aim of company integration management is to overcome incapacity for work as far as possible, to prevent renewed incapacity for work and to retain the job of the employee concerned. Corporate integration management is a team task. The employer first contacts the person concerned, clarifies the situation with him and discusses the objectives of occupational integration management. If the employee rejects the implementation of operational integration management, the employer is released from its obligation. With the consent of the person concerned, the employer calls in the works council or the staff council and, in the case of severely disabled employees or employees with equivalent disabilities, the representative body for severely disabled employees and, if necessary, the company doctor, and clarifies with them what assistance is available for a rapid return to the company or the department. This can include various measures such as a reduction in workload or reorganization of the workplace, but also transfer to another position. The concept for a company integration management will look different in a large company than in a medium-sized company. In no case, however, do simple sickness return calls meet the requirements. The employee may consult a trusted third party. This must be pointed out to the employee in advance, otherwise the BEM is faulty. Pursuant to Section 167 (3) SGB IX, the rehabilitation providers (z. B. pension insurance carriers and employers' liability insurance associations) and the integration offices, employers who introduce occupational integration management are supported by premiums or a bonus.

Illness and termination of employment

There is no legal prohibition to give notice to a sick employee.

However, it must be examined in each individual case whether termination is permissible. Different rules apply to small companies and those where the Dismissal Protection Act applies. Further information, including on the effects of failure to implement BEM, can be found in the leaflet "Grounds for dismissal and protection against dismissal".

An employee's illness must also be taken into account if the employment relationship is to be terminated by concluding a termination agreement. According to a decision of the Federal Labor Court of 07.02.In 2019 (Case No. 6 AZR 75/18), a termination agreement may be invalid due to a breach of the requirement of fair negotiation, depending on the individual case, if the employee was in a physically weakened state during the contract negotiations.

Sickness and vacation

If the employee is unable to claim his leave entitlement in the current calendar year due to illness, the leave is carried over by operation of law to the first calendar quarter of the following year. Contrary to the previous view, however, this entitlement does not generally expire if the employee is unable to take the leave either in the current calendar year or in the carryover period.

Following the decision of the European Court of Justice of 20.01.2009 (Az C-350/06), which both the Regional Labor Court of Dusseldorf (Az 12 Sa 486/06) and the Federal Labor Court (Az 9 AZR 983/07) have followed in terms of content, an employee's vacation entitlement does not expire if he or she was on sick leave during the entire reference and carryover periods. Accordingly, vacation is also accrued for the period during which the employee was properly on sick leave. The employer must ensure that the employee can assert this entitlement at a later point in time. If the employment contract ends without the employee being able to claim his leave, he also has a claim for compensation against the employer in this case. In the opinion of the Federal Labor Court, this also applies to additional leave agreed by collective agreement or individual contract if no differentiation is made in the employment contract between statutory and non-statutory leave entitlement. It is therefore advisable to differentiate between statutory and non-statutory vacation entitlement in the employment contract.

In the meantime, however, the European Court of Justice has set a limit on the accrual of leave (judgment of 22.11.2011, Az. C-214/10). The European Court of Justice, which is also supported in this respect by the LAG Baden-Wurttemberg (ruling of 21.12.2011, 10 Sa 19/11), has ruled that the forfeiture of minimum vacation entitlements of employees on long-term sick leave can be ordered by law or collective agreement if the corresponding carryover period is sufficiently long to ensure the recreational purpose of the leave for the employee. Sufficiently long is the carryover period if it lasts 15 months after the end of the calendar year for which the minimum leave accrued. This was confirmed by the Federal Labor Court in its ruling of 7.

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