The sick employee and labor law

The sick employee and labor lawIf employees fall seriously ill during the employment relationship, and sometimes long-term or. permanent, various legal questions arise.

A summary of the most important information on the subject of labor law and illness!

We would like to take this as an opportunity to take a closer look at the subject of illness in the employment relationship, as there are a number of things to consider for both employees and employers.

(Pre-)contractual risk minimization

From the employer's point of view, there are some possibilities to minimize the problems arising in the case of a permanently ill employee already before the conclusion of the employment contract. First of all, within the framework of the interview, the specific question is permitted as to whether impairments exist that could stand in the way of the concretely owed activity. For example, the warehouse worker may be asked if he is able to perform the carrying services that are necessarily required.

Furthermore, a telephone call to the previous employer seems conceivable, who can provide information about frequent absences of the employee. Furthermore, the obligation to undergo a medical examination with regard to the activity performed is not excluded from the outset. In this context, it is not uncommon for illnesses to become known, which can lead to frequent absences from work. In addition, it is possible for the employee to explicitly affirm, as part of the employment contract, that he or she does not suffer from any health impairments that conflict with the owed work performance. This corresponds with the addressed right to ask questions in the interview, but leads beyond that to a written fixation and thus to the provability of the statement. Furthermore, the continued payment of remuneration can be contractually excluded in the event of the care of sick children.

Sanctions in case of violation of the notification and proof obligations

The Continuation of Remuneration Act (EFZG) stipulates that the employee must notify the employer of his incapacity to work without delay. Immediacy only exists if notification is received by the employer within the first working hours of the first day of illness. In this respect, the receipt of the notification by the employer is decisive. Oral communication is sufficient. It does not necessarily have to be done in person, but can also be done by family members or work colleagues. It is important that it goes to the person designated by the employer for this purpose, usually the human resources manager, on that day. The certificate of incapacity for work (AUB), which must include the expected duration of the illness, is due on 4. Day of incapacity for work to be submitted. However, the employer has the right to demand the AUB even from the first day of the illness (§ 5 para. 1 S. 3 EFZG). In the event that the inability to work continues beyond the predicted duration, the resubmission of an AUB is required. Although the law does not provide for an exact point in time in this respect, the 3-day period after the expiry of the previous AUB should basically be amed here as well. Even if the legal six-week period of continued pay is exceeded, certificates of incapacity for work must still be submitted to the employer. In addition, a warning and, in the event of repetition, even dismissal may be considered. The certificate of incapacity for work leads to the factual presumption that the employee is incapacitated for work due to illness. However, the – quite high – probative value can be shaken by various circumstances. Possible circumstances may be, for example:

– the illness after rejected leave, – the inability to work often falls on a day at the beginning or end of the week, – the disregard of the summons of the medical service of the health insurance company, – unusual behavior during the illness (working, excessive consumption of alcohol, etc.), – the absence of the employee from work.) as well as – a backdating of the certificate of incapacity for work by more than 2 days.

In the event that the employer succeeds in shaking the probative value of the AUB, it is again possible for the employee to prove that he was nevertheless actually incapacitated for work. Evidence can be provided, for example, by questioning the treating physicians, by an expert opinion, as well as by questioning other persons who were able to observe the employee's condition and can therefore evaluate it (z. B. the spouse), must take place.

Violation of the prohibition of behavior contrary to the recovery process

Although there is no general obligation to behave in a way that protects health. However, the sick employee is subject to an increased duty of consideration. The employee is obliged to behave in such a way that he or she will soon be healthy again and can return to his or her job. It behaves in a manner contrary to recovery when its behavior at least delays the success of healing or is against explicit advice. For example, a cold may allow the employee to go for a walk, but not to run an energy-sapping marathon.

Entitlement to see a doctor during working hours?

General examination resp. Treatment appointments must in principle be made by the employee outside working hours, if and to the extent that this is possible and reasonable for him/her. An exception is made if the treatment is required during working hours for specific reasons, such as taking a blood sample early in the morning while sober, or if the employee is unable to obtain an appointment outside working hours despite his or her best efforts. In this context, the principle of free choice of doctor must be taken into account – according to this, the employee does not have to go to a doctor other than the one he trusts just because he might be able to get a better appointment in terms of time.

Entitlement to reintegration?

Reintegration is the gradual resumption of work (especially for employees with long-term illnesses) during the period of incapacity according to a doctor's plan and in increasing amounts, also known as. "Hamburg Model". In principle, the employee is not entitled to rehabilitation, as the employer is not obliged by law to accept partial benefits. In this respect, the employee is dependent on the employer's willingness to conclude a reintegration agreement with him/her. The conclusion of a reintegration agreement specifying type. The scope of the activity is to be performed according to the specifications of the medical certificate. Since the employee continues to be incapacitated for work during the reintegration phase, there is no entitlement to salary during the reintegration phase. However, the health insurance company grants sickness benefits if such a claim still exists.

Entitlement to employment in line with suffering?

In the event that the employee is no longer able to perform the service specified in more detail by the employer, the duty of consideration under § 241 para. 2 BGB (German Civil Code) require the employer to make use of his right of direction and to otherwise specify the performance to be rendered by the employee within the framework agreed in the employment contract in such a way that it is possible for the employee to render the performance again. If the employer culpably violates this obligation and the employee is therefore unable to perform work, the employee may be entitled to damages for lost compensation. The employer's obligation to redefine the employee's job presupposes that the employee has requested transfer to a job suitable for suffering and has informed the employer how he envisages his further employment suitable for suffering. The employer must regularly comply with the employee's request if it is reasonable and legally possible to assign the employee to another activity. This is the case if there are no operational reasons (= also economic considerations) or the duty to show consideration for other employees that stand in the way of the assignment. If a job suitable for the illness is not available, a replacement of employees requires that the employer can assign another job to the employee holding the other job by means of the right of direction, that the new exercise of the right of direction is in accordance with reasonable discretion vis-à-vis this employee and that the employee to be replaced has not refused his consent to a change of job.

Personal dismissal due to illness

Dismissal due to illness is the most frequent case of dismissal for personal reasons. Three prerequisites must be fulfilled for an effective illness-related dismissal. First of all, there must be a negative health prognosis. Based on an objective prognosis, the concern of future illnesses that will burden the employment relationship must be justified at the time of the dismissal. In the case of long-term illnesses, it is necessary that no positive development can be expected in the next 24 months. Previous periods of absence are not to be counted towards this period of time. In case of frequent short illnesses, a downtime of at least six weeks over a period of usually two years is required. Furthermore, there must be a significant impairment of operational interests, which is presumed in the case of a long-term illness. In the case of frequent short-term illnesses, this is to be affirmed if there are significant disruptions to operations (standstill of machines, decline in production, delivery bottlenecks due to personnel to be deployed and trained at short notice) and significant economic impairments (continued wage costs of more than six weeks per year). Furthermore, a comprehensive weighing of interests is necessary. This records the classic criteria such as length of service, length of undisturbed employment, age, maintenance obligations, severe disabilities, etc.

Like this post? Please share to your friends:
Leave a Reply

;-) :| :x :twisted: :smile: :shock: :sad: :roll: :razz: :oops: :o :mrgreen: :lol: :idea: :grin: :evil: :cry: :cool: :arrow: :???: :?: :!: