What Every Employer Must Know About Sick Leave in Germany?

In Germany, employee well-being is a priority, even when they're on sick leave. Learn about pay during sick leave from legal obligations to creating a caring work environment. 

Sick leave is a critical aspect of employment, ensuring that employees have the necessary time to recover from illnesses without the fear of financial repercussions. In many jurisdictions, including those governed by the Remuneration Payment Act, specific regulations protect the rights of sick employees. This article provides an in-depth overview of the key aspects surrounding sick leave, employee rights, and employer responsibilities.

1. Sick Leave as an Exception to the "No Wage without Work" Principle

Traditionally, the principle of "no wage without work" dictates that employees are only entitled to payment for the time they actively work. However, in cases of sickness or incapacitation, this principle is superseded by exceptions that allow employees to receive remuneration even when they are unable to perform their duties.

2. Continued Sick Pay and Duration

The Continued Payment of Wages Act regulates the entitlement of sick employees to continued payment of wages for a period of up to six weeks. During this period, workers are entitled to continue to receive 100% of their wages despite being unable to work due to illness. This provision provides workers with a safety net during the period of illness so that they do not face financial hardship as a result of their illness.

3. Reporting and Medical Certificates

In the event of illness, the employee has two obligations: The obligation to notify and the obligation to provide evidence. The duty to notify is the duty to inform the employer immediately of the inability to work and its probable duration (sick note). Immediately means "without undue delay", i.e. as soon as the inability to work is known, preferably before starting work. The law does not prescribe a specific form; the employee must simply ensure that the employer receives the notification without delay.

A doctor's certificate of incapacity must be submitted if the incapacity is expected to last more than three days. Calendar days, not working days, count.

4. Employer's Duty of Care

Employers have a duty of care towards their employees, particularly those who are unwell. If an employer is aware of an employee's incapacity to work, they are prohibited from assigning inappropriate tasks or allowing the employee to engage in work that could exacerbate their condition. In fact, employers may be required to discourage such employees from working in certain cases.

5. Insurance Coverage and Liability

Employees are typically insured for instances of sick leave, whether the incapacity is due to a commuting accident or an accident that occurs at the workplace. However, if an employer breaches their duty of care and allows an employee to work despite knowing their incapacity, any resulting accidents could shift liability from insurance coverage to the employer.

6. Consider Employee Privacy:

Respect employee privacy and confidentiality regarding their medical condition. Medical information is sensitive, and employers should only share it with those who need to be informed, such as HR personnel responsible for managing sick leave and payroll.

7. Document Everything:

Maintain thorough records of all sick leave-related communications, medical certificates, and any arrangements made during the sick leave period. This documentation helps in case of any disputes or legal issues.

By following these steps, German employers can fulfill their obligations while providing their employees with the necessary support and care during sick leave. This approach not only ensures legal compliance but also fosters a positive work environment where employees feel valued and supported.

8. Sick pay changes after six weeks of illness- what If different illnesses follow one another?

When an employee is sick and unable to work, their employer typically must continue paying their salary for up to six weeks. But what happens if the employee falls ill again with a different issue shortly after the first illness?
In such cases, the German Federal Labor Court (BAG) follows a principle called the "unity of the prevention case." This means that the employer is only obligated to pay wages for the second illness if the first one had already ended before the second began. It's the employee's responsibility to prove this.

For example, a geriatric nurse had a mental illness from February to May, followed immediately by a gynecological issue. She claimed her employer should pay her salary for another six weeks, but the employer argued it was a single prevention case, so they weren't obliged to pay. The BAG (Federal Labor Court in Germany) agreed with the employer, stating that the burden of proof falls on the employee to show that the first illness had ended when the second one started. In this case, the employee couldn't provide sufficient evidence to demonstrate the absence of a uniform prevention case, so she didn't receive further payment from her employer.