Contrary to widespread opinion in the profession, an employee’s (secondary) obligation to notify their employer without delay of their inability to work pursuant to section 5 (1) sentence 1 of the German Continued Payment of Wages and Salaries Act (EntgFG) also persists in the event of the continuation of the illness. Breaching this obligation therefore authorises the employer to impose sanctions under labour law, including dismissal on grounds of conduct. This has been recently clarified once again by the Federal Labour Court (Bundesarbeitsgericht, BAG).
Pursuant to section 5 (1) sentence 1 EntgFG (https://www.gesetze-im-internet.de/entgfg/__5.html), employees are obliged to notify their employer without delay if they are unable to work and the expected duration of this inability. If the employee is unable to work for longer than three calendar days they must provide their employer with a doctor's note regarding their inability to work and its expected duration no later than on the following work day. If the period of inability to work continues beyond the end date specified on the doctor’s note, the employee is obliged to submit a new doctor’s note. This notification obligation assists the employer with planning and scheduling, as they must (re)organise their operational processes as soon as possible in view of the absence of the employee concerned. The employer must be notified without delay, i.e. without undue delay, usually through the use of modern telecommunication methods (telephone, email etc.) and in any case by contacting a member of staff authorised by the employer to receive such notifications.
The statute does not regulate whether the ill employee is also under an obligation to notify their employer without delay (in accordance with the aforementioned stipulation) if their inability to work persists beyond the initial date in the doctor’s note (even though in practice it is known to happen quite often). The legislature has passed such a regulation merely in regard to the employee’s obligation to submit a follow-up doctor's note, see section 5 (1) sentence 4 EntgFG.
The case decided by the BAG on 7.5.2020 (case no: 2 AZR 619/19; cf. http://juris.bundesarbeitsgericht.de/zweitesformat/bag/2020/2020-07-17/2_AZR_619-19.pdf) concerned dismissal on grounds of conduct of a long-standing employee who had been continuously ill over a long period of time because they had not duly notified their employer of the continuation of their inability to work. In the event of being unable to work, operational requirements obliged the employee to inform their manager without delay “on the first work day, for example by telephone, giving reasons and the expected duration”. The employer issued the claimant a warning because they had not reported for work without giving a reason and on a second further occasion because the follow-up doctor's note had not been received by the manager in good time. Submitting a follow-up doctor’s note in the course of the Monday when the initial duration of the inability to work was supposed to have ended on the Friday of the previous week led to the termination of the claimant’s employment.
In the decision of the lower court, the Baden-Württemberg Regional Labour Court (Landesarbeitsgericht, LAG) dated 8.5.2019 – 10 Sa 52/18; http://lrbw.juris.de/cgi-bin/laender_rechtsprechung/document.py?Gericht=bw&nr=29738) had in fact stated that it represented a culpable breach of an obligation which could justify dismissal on grounds of conduct if the employee had not properly notified their employer of the continuation of their inability to work. However, as part of balancing interests, the LAG accepted lesser culpability on the part of the employee; breaching the obligation to notify the employer without delay in the event of the continuation of an illness affects the employer’s planning and scheduling ability generally less seriously than a delayed notification of the first occurrence of the employee’s inability to work; the employer is no longer “unprepared” here. Particularly in the event of a long-term inability to work the employer must endeavour to find a longer-term alternative solution. Experience shows that it is also rather unlikely that the employee is actually going to return to work without a statement to the contrary after a long period of being unable to work and numerous follow-up doctor's notes.
In contrast, the BAG clarified that the notification obligation of section 5 (1) sentence 1 EntgFG applies the same to both the first illness and follow-on illnesses. The breach of the obligation to notify the employer without delay of the follow-on illness should, in principle, be just as serious as the lack of/delayed notification of a first illness. The employer should not also have to assume that in the event of a long-term illness of the employee that they will continue to be ill beyond the notified period. In fact, the employer may rely on the notified duration of the illness. The continued duration of inability to work itself does not also generally indicate that recovery is more unlikely. The BAG referred the matter back to the LAG on the grounds of inadequate establishment of the facts.
Even if the legislation is inconclusive in this respect, the decision of the BAG shows that the notification obligation as per section 5 (1) sentence 1 EntgFG applies to the same extent in the event that the inability to work has persisted past beyond the initial date and that the employee risks their employment if they breach this obligation. It is not the case that the obligation is of lessor importance just because it deals with an ongoing or even a long-term illness after the expiry of the period for continued payment of remuneration. On the other hand, according to the BAG the obligation applies regardless of whether it applies to the commencement or continuation of the inability to work. Regardless of this, in view of the incomplete wording of section 5 (1) EntgFG, it makes sense that in terms of notification obligations contractual employment provisions are framed in such a way that they also include this matter of ongoing illnesses. Employees are strongly recommended to fulfil their statutory notification obligations and obligations to provide proof without restriction, including in the event of follow-on and long-term illnesses and also after the expiry of the six week period for continued payment of remuneration, even without such a contractual regulation.