Germany: Continued payment of remuneration in the event of an incapacity to work due to sickness
Under German law, the employer is obliged to continue paying the contractual remuneration to employees who are on sick leave. Unless other, more generous contractual agreements, works council agreements or collective bargaining agreements are in place in the individual case, the statutory obligation to pay continued remuneration due to sickness is limited to a period of six weeks. The six-week period generally applies per sickness, i.e. it recommences when the employee is again incapacitated for work due to a new sickness.
Nevertheless, the legal situation is different in case the employee suffers from two different sicknesses and these sicknesses overlap. The German Federal Labour Court has recently ruled in a case involving this particular issue.
The claiming employee was initially on sick leave due to a mental illness. The employer continuously paid the employee’s remuneration for six weeks. Subsequently, the employee underwent a surgery that had been planned for a long time because of a gynaecological condition. The doctor again certified the employee’s inability to work for another six weeks.
However, the Federal Labour Court ruled in favour of the employer and confirmed that the employee’s claim to continued remuneration was limited to a total of six weeks, taking into account both the absence due to the mental illness and due to the surgery. This was because both medical conditions overlapped. In such case, the second sickness absence only leads to the commencement of a new six-week period of continued remuneration if the first medical condition had ended before the new one arose. Otherwise, both absences are considered one uniform case of incapacity to work. In case of a dispute on the claim to continued payment of remuneration, the burden is on the employee to prove that the first sickness had already been cured at the time the second sickness began. In the case at hand, the employee was not able to prove this, as the court proceeding showed that she had continuously been medicated for her mental illness and was on a waiting list for psychotherapy. Therefore, the court found that the mental condition and the sick leave due to the surgery overlapped.
The ruling of the Federal Labour Court is beneficial for employers, as it clearly allocates the burden of proof to the employee when several sicknesses occur closely connected in time and it is doubtful whether they overlapped. Where employers have reasonable doubts about their obligation to continuously pay an employee’s remuneration, it is generally possible to refuse the payment of continued remuneration towards the employee, referring to their burden of proof. However, court proceedings in such cases often pose a “black box” for employers, as the medical reasons for an employee’s sickness are often unclear prior to the proceeding.
