Illness and work

Where can I find regulations on rights. Obligations in the event of illness? Legal regulations can be found in the Continuation of Remuneration Act (EFZG). To the law .

Furthermore, regulations may also be contained in the employment contract, collective bargaining agreement and company agreements.

Is there a right to continued payment of wages in the event of illness??

All employees, including marginal and short-term employees, have a claim to payment of remuneration under the following conditions:

– The waiting period gem. § 3 para. III EFZG is fulfilled, i.e. according to four weeks uninterrupted duration the employee is unable to work due to illness, – the illness is the sole cause of the inability to work, – the employee is not at fault.

What does illness mean?

Whether an illness exists is to be judged according to objective medical criteria, thus it depends on the findings of the physician.

An incapacity to work due to illness is to be amed if the physical or mental performance capacity is impaired or disturbed due to any damage or changes in such a way that the employee cannot perform the contractual work. Of course, this also includes health problems. Complaints due to an accident under the concept of illness. Permanent conditions that are congenital or cannot be remedied medically do not constitute an illness in this sense, nor does a normal pregnancy.

Even a visit to the doctor does not in itself fall under the term "illness". In this respect the employer is however possibly obligated in accordance with. § 616 para. 1 BGB to temporarily release the employee from work, unless he has the possibility to make a medical appointment outside working hours.

Claims to continued remuneration exist according to the EFZG, however, not only in the case of illness, but also in the case of:

– measures of medical prevention and rehabilitation – lawful abortion – lawful sterilization

When does the employee not receive continued remuneration in the event of illness?

A claim for continued payment of wages exists only if the illness is not the fault of the employee.

Personal negligence shall be amed if there is a gross violation of the conduct to be expected of a reasonable person in his or her own interests. Mere careless behavior is not sufficient, rather there must be a particularly gross personal negligence. This can be amed in the following cases:

As a rule, no money in case of injuries

– for kickboxing – for not wearing a prescribed safety helmet – for using a vehicle that is not roadworthy – for a self-provoked brawl – for causing an accident under the considerable influence of alcohol, – for not wearing a seatbelt – for particularly careless violation of accident prevention regulations – because explicit instructions from the employer were violated – for particularly gross and careless violations of recognized rules in the area of a dangerous sport.

payment of wages but in the event of injuries within the scope of

– not harmless sports, such as hang-gliding, parachuting, amateur soccer, amateur boxing, provided that the known safety precautions and rules are observed and the employee does not overestimate his own strength and abilities – not harmless activities, which are, however, common practice, such as pruning fruit trees

Always depend on the specifics of the individual case.

In principle, the employer must prove that the employee is at fault. However, this does not apply to the area of drunk driving. Here, the burden of proof is regularly reversed, with the consequence that the employee has to prove his innocence.

The mere fact that an accident occurred under the influence of alcohol is not enough. The alcohol must have been accident-causal.

A special feature is an existing Alcohol dependence or Drug addiction dar. It could be argued that it is the fault of the person who ruins his or her health by drinking alcohol. However, this is incorrect. Alcohol dependency, like drug addiction, is a disease, which is why fault on the part of the employee is regularly negated. However, the situation is different if the employee relapses after a successful withdrawal measure.

How long does the employee receive continued payment of wages in the event of illness??

The employee has a claim against the employer for continued payment of remuneration over a period of 6 weeks (resp. 42 calendar days).

After the expiry of the 6-week period of continued payment of wages, the employee is entitled to sickness benefit from his/her health insurance fund.

What to do in case of repeated illnesses?

Here it is to be distinguished whether the repeated illness is a

New disease

In the case of a new illness, i.e. an illness that is not based on the same underlying condition, the employee is again entitled to full continued payment of remuneration of six weeks .

If, however, the new illness occurs during the still ongoing incapacity for work of the first illness, then the entitlement to continued payment of remuneration ends at the latest after 6 weeks.

secondary illness

If, on the other hand, the further incapacity to work is due to the same underlying illness, then a secondary illness is present. The following applies to these:

Entitlement to continued payment of remuneration also exists in the case of subsequent illnesses in any case until the 6-week period has been exhausted. The 6-week period(s) of continued payment of remuneration can therefore be paid at a stretch or at intervals.

If the underlying illness, z.B. because it becomes chronic, causes the employee to exhaust the 6-week period, i.e. to be ill for a total of more than 6 weeks, then the employee is entitled to continued payment of remuneration because of this illness, if

– between the last sick day of the previous illness and the first day of the new subsequent illness a period of at least 6 months in which the employee was not incapacitated for work due to this basic illness

– If the employee does not reach a work ability period of 6 months due to the basic illness, i.e. falls ill again and again at shorter intervals, a claim for continued payment of remuneration arises, provided that between the very first incapacity for work and a subsequent illness a period of 12 months exists. It does not matter when and how often the employee was unfit for work during this 12-month period.

Of course, these statements only apply to illnesses resulting from the same disease.

In the case of a new illness, i.e. one that has nothing to do with the underlying condition, the employer must always continue to pay remuneration according to. pay the above mentioned principles to the new disease.

How much money does the employee receive during illness?

In the first six weeks, the employer pays continued remuneration in the event of illness, as shown above.

The loss of pay principle applies. The employee is consequently entitled to the remuneration he would have received if he had not been incapacitated for work.

The decisive factor is thus how the employee is paid according to. Duty roster or shift schedule would have been used during the inability to work.

If the employee is included in a certain group, for example, a piecework group or shift group, then for him the work assignment of this group is decisive for the calculation of the remuneration during the incapacity for work.

If the employee receives a fixed monthly salary, then he or she continues to be compensated for it.

However, overtime is excluded from remuneration during incapacity for work (§ 4 para. 1a sentence 1 EFZG).

However, the relevant collective bargaining agreement may stipulate a different basis for calculating the remuneration to be paid.

What are the obligations of the employee in case of illness?

An employee who is unfit for work has a duty to his employer

Duty of disclosure

The employer must indicated immediately are:

– The fact, i.e. the existence of the inability to work and – its expected duration.

Immediately means that the employee must inform the company as early as possible on the first day of incapacity for work that he is ill and how long the illness is expected to last. The employer must be given the opportunity to react to the illness in good time by taking organizational measures. On the other hand, the employer does not have to be informed of what the employee is ill with.

Proof requirement

Therefore, be sure to take a look at your employment contract and check when the medical certificate is to be submitted.

If the inability to work lasts longer than stated in the certificate, the employee is obliged to submit a new medical certificate. Violation of notification-. Requirement to provide proof. In the event of a breach of the above notice-. Duty to provide evidence, the employer may ie a warning. In the case of repetition, even a behavior-related dismissal can be considered.

Furthermore, as long as the inability to work is not proven, the employer has the right to withhold wages.

What if I fall ill abroad?

If the employee is abroad at the beginning of the incapacity for work, he is obliged to inform the employer of

– the inability to work, – its expected duration and – the address at the place of stay – in the fastest possible way of transmission

share. The costs incurred by the notification must be borne by the employer.

In addition, if the employee is a member of a statutory health insurance fund, he or she is obliged to notify the latter immediately of the incapacity for work and its expected duration

What to do if you fall ill while on vacation?

If an employee falls ill while on vacation, the days of incapacity for work, as evidenced by a doctor's certificate, are not counted toward annual vacation.


If the employee falls ill while on vacation, he should definitely go to a doctor, even if he is abroad, and have a medical certificate drawn up about the illness. Abroad, the employee must fulfill his obligation to provide evidence as described above.

Does the employee have to stay at home during the illness?

What the employee may or may not do during the illness depends on the clinical picture.

In no case may the employee

– behave in a manner contrary to recovery, or – perform activities or work that allow the conclusion to be drawn that he or she has deceived the doctor about the existence of incapacity for work.

Ultimately, the individual case is decisive. In no case is there a general obligation to stay at home or even to stay in bed during illness. Rather, the clinical picture is decisive. In the case of mental illness, a walk in the fresh air can certainly not be regarded as contrary to recovery. On the other hand, something different would apply to a feverish cold.

What is the probative value of the medical certificate of incapacity for work??

A doctor's certificate of incapacity for work has a high probative value. The employer must present circumstances and, if applicable. evidence that gives rise to serious doubts about incapacity for work. Such may be, for example:

– Work during incapacity for work with another employer – Extensive work in your own house extension – Previous threat of illness as a means of prere (z.B. if leave is not granted). – Retroactive certification of incapacity for work by the physician by more than two days. – Refusal to present oneself to the medical service for verification of incapacity for work.

If a foreign certificate of incapacity for work is submitted, the employer is bound by the medical findings on the occurrence and duration of the incapacity for work. The evidentiary value of a foreign certificate of incapacity for work is therefore virtually unassailable.

Can the employee be dismissed during an illness?

The presence of an illness or incapacity for work does not prevent the iance of a notice of termination.

Only in very rare cases can a dismissal be invalid because it is untimely. These are cases in which a termination at this time is contrary to good faith or immoral. This is particularly the case if the employer knowingly terminates the employment at a time when the employee is particularly affected by the termination and this is unacceptable to a reasonable and fair-minded person.

However, the mere fact that the employee is ill is not sufficient.

Can illness constitute grounds for dismissal?

Yes. Please refer to the remarks on Dismissal due to illness .

We are happy to help you!

We will be happy to advise and support you in all legal matters relating to employment law and legal disputes.

On request we take over the negotiations. Both pre-court and court correspondence is conducted through us, so that you are burdened as little as possible by the legal dispute.

Of course, the procedure is always carried out in consultation with you as the client. If the situation requires it, we are also happy to stay in the background if desired, so that the employment relationship is not unnecessarily strained.

If you have legal protection insurance, we will take care of obtaining a confirmation of coverage from your legal protection insurer.

All deadlines are monitored by us.

We will initiate legal proceedings in consultation with you.

Please note that the following documents, if available, are required to advise you and enforce your rights:

– Employment contract – Wage statements – Company agreements – Notice of termination – Warning – Certificate – Intended termination agreement – Printout of overtime account – All other relevant documents you have received with the present legal ie.


The legal information on this website is of course free of charge. However, please note the Notes .

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