16. Jan 17

BAG on continued payment of wages in the event of illness

If an employee falls ill and is unfit for work, he has a right to continue to be remunerated for six weeks. Should he become sick again during this period, this does not result in said timeframe being extended.

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: According to employment law, employers must continue to pay the wages of employees who fall ill and are thus unfit for work for six weeks. The employer is no longer obligated to continue payment of wages after six weeks have passed, even if the employee in question becomes sick again and continues to be certified unfit for work during these six weeks. That was the verdict of the Bundesarbeitsgericht (BAG), Germany’s Federal Labour Court, in its ruling of May 25, 2016 (Az.: 5 AZR 318/15).

In the instant case, an employee had fallen ill. His family doctor issued him with a certificate of incapacity. The worker was signed off work for a total of six weeks. On the last day of this period, the employee consulted his family doctor regarding another illness. The latter provided him with an initial document certifying that he was unfit for work. Notwithstanding this, the employer refused to continue payment of wages in response to the second certificate for sick leave.

The BAG ruled in favour of the employer. It held that while it is the case that a worker who falls ill due to another illness after having returned to state of being able to work again following the first illness is unfit for work and has a new right to continue to be remunerated for six weeks, this right also has its limits. The Court went on to say that if the worker’s condition relating to his second instance of unfitness for work shows different symptoms but is nonetheless based on the same underlying cause that has yet to be remedied, this is deemed to be an associated, secondary disorder that does not give rise to a renewed duty on the part of the employer to continue paying wages. The BAG stated that this would only be the case again if a period of at least six months separated the two illnesses.

The Court also noted that even if the case concerns two different illnesses, the employer is not automatically obliged to continue payment of wages. Pursuant to the principle of viewing incapacity as a single entity, the entitlement to continue to be remunerated is limited to six weeks from the beginning of when the worker becomes unfit for work if during this period of incapacity he comes down with another illness that also entails him being unfit for work. In this case, the six-week period only applies once.

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