In the event of incapacity for work, employees are entitled to receive continued payment from their employer for a period of six weeks. If a new incapacity for work occurs after recovery from an illness, this essentially establishes a new claim to continued payment. But if this new incapacity for work directly follows the previous illness and the employer suspects abusive conduct on the part of the employee, the employee may be required to remove any suspicion to prevent losing the claim.
The Federal Labour Court's decision of 11 December 2019
In its decision of 11 December 2019 (Reference 5 AZR 505/18, NZA 2020, 446), the Federal Labour Court clarifies that the claim to continued payment in the event of incapacity for work is restricted to the period of six weeks if a new illness occurs during the existing incapacity for work based on the principle of unity concerning the case of incapacity. A unified case of incapacity is regularly involved if there is a close temporal relationship between a "first" incapacity for work due to illness and a subsequent inability to work which the employee attests using an "initial certificate". This is particularly the case if the certified incapacities for work occur in direct succession or if the employee only has one non-working day or one non-working weekend between them. If the employee is unable to verifiably demonstrate that the first incapacity for work had ended at this point, the claim to continued payment is lost.
The underlying factual circumstances behind the decision
The dispute between the parties concerned continued payment in the event of illness for the period from 19 May to 29 June 2017. The plaintiff employee was unable to work due to illness for the period from 9 to 25 January 2017. In the period from 26 January to 6 February 2017, she was on leave. Starting 7 February 2017, she was once again unable to work due to a psychological condition. The defendant employer issued continued payment in the event of illness up to and including 20 March 2017. Subsequently, the employee received sick pay until 18 May 2017 on the basis of subsequent certificates. On the following day, 19 May 2017, she underwent surgery that had been planned some time before. One day before, the gynaecologist had attested the employee's incapacity for work with an "initial certificate" from 18 May to 16 June 2017 initially and with a "subsequent certificate" that was anticipated to last until 30 June 2017. For the period from 19 May to 29 June, the employer did not issue any continued payment.
The employee asserted that her incapacity to work due to mental illness ended on 18 May. The operation on 19 May accordingly led to a new incapacity for work which would establish a new claim for continued payment. The employer countered with the assertion that the illness underlying the surgery already existed before 19 May. In addition, the employee's mental illness lasted longer than 18 May, meaning that the obligation of continued payment would already have ended on 20 March after six weeks elapsed based on the principle of unity concerning the case of incapacity.
The practical argumentation of the Federal Labour Court
The Federal Labour Court clarified that, based on the principle of unity concerning the case of incapacity, the employee may only claim one six-week continued payment in the event of illness even if a new illness occurs during this phase. A new claim is only established if the employee has recovered from the first illness and then a new incapacity for work occurs. This is regularly the case if the employee actually worked between the two phases of incapacity for work or was capable of work for several hours outside normal working hours. The decisive factor in this context is the duration of incapacity for work specified in the sick note.
But if the employee calls in sick again immediately after a full six-week period of entitlement to continued payment using an initial certificate due to a new incapacity for work and the employer challenges the claim due to significant doubts that the previous illness had ended and a later illness had occurred, the employee must prove that the new incapacity for work occurred after the initial illness was already over and the employee must submit the extended initial certificate.
Practical note and Outlook
The Federal Labour Court is establishing a connection to its jurisprudence from 2016. Contrary to the conclusion suggested by the media's response to the press release, an employer cannot simply refuse continued payment in case of a subsequent incapacity for work directly following the initial illness without a break. Instead, the employer must invoke significant indications to expressly and demonstrably dispute that the employee's illness had already ended by the time of the new "initial certificate". It is then the employee's responsibility to provide evidence that the illness had already ended. This is justified with respect to the parties' interests as well as practical considerations, since the employer typically has no knowledge about the causes and progression of an employee's illness. The sick note alone in its current form is not sufficient proof of recovery in favour of the employee. On the one hand, the certificate merely states an "anticipated" duration of the incapacity for work, meaning that the actual end of the illness cannot be verified. Neither, however, do physicians provide "healthy notes" when an illness actually ends.
The Federal Labour Court left open the meaning of the option provided by the directive concerning incapacity for work to mark a sick note as a "final certificate" if it is possible, when issuing the certificate, to safely estimate that the incapacity for work will end after the attested period has elapsed. In practice, it will likely be impossible to issue many "final certificates" of this kind. Furthermore, the probative value of a forecast concerning recovery would have to be significantly lower.
Therefore, the employee only has recourse to the testimony of the physician issuing the sick note, who must be released from the medical obligation of secrecy. If the employee does not succeed in obtaining this evidence through the physician's testimony, the employer may refuse to issue continued payment – but not before this point.