After 78 weeks of illness suddenly healthy – or ready for holiday

Nobody is spared from illness and the financial protection of employees in case of illness follows the social responsibility of the employer and the community of solidarity. In the case of a long-term illness, a six-week period of continued remuneration, during which the employer is obliged to continue to pay salary in accordance with the Continued Remuneration Act (EFZG), is therefore followed by a further period of 72 weeks during which the employee receives sickness benefit. This sickness benefit paid by the health insurance fund is considerably less than the last salary. If the illness lasts for more than 78 weeks, sickness benefit is not paid and the employee may be entitled to unemployment benefit.

In practice, it happens time and again that at the end of the six-week period of continued remuneration or while receiving sickness benefit, and frequently also at the end of sickness benefit payment, employees report to a doctor with an initial certificate and report a new illness. Leave is often applied for and taken immediately after a longer period of incapacity to work, which is in turn followed by a new illness certified by a doctor’s initial statement. In both cases, the employers concerned are usually required to continue to pay remuneration in accordance with the EFZG.
In fact, there is a right to continued payment of remuneration if the new illness is actually a new illness and the previous illness has healed. If a new (further) illness only occurs next to an existing illness for which continued remuneration or sick pay has already been paid, the entitlement to continued remuneration does not revive. If the previous illness persists, no holiday entitlement can arise either, since according to § 9 of the Federal Holiday Act (BUrlG) holiday and illness are mutually exclusive. If, in this case, the employee were to report a new (further) illness immediately after the holiday, the employer could reclaim the holiday pay paid.

In these constellations, the employer is regularly faced with the question of how to prove its assumption that the illness is a so-called uniform continuing illness and that no new claims to remuneration will therefore arise.

The Federal Labor Court (BAG) provides answers to this question in a decision dated December 11, 2019

“The statutory entitlement to continued remuneration in the event of illness is also limited to a period of six weeks if, during existing incapacity to work, a new illness based on another underlying disease occurs which also results in incapacity to work (principle of unity of the case of prevention). A renewed claim to continued remuneration only arises if the first sickness-related incapacity to work had already ended at the time when the further illness led to incapacity to work.’’

In the case to be decided, the applicant was on long-term sick leave and was receiving sickness benefit. During this period, the plaintiff underwent an operation on 19 May 2017. On 18.05.2017, her gynaecologist in private practice certified as “initial certificate” an incapacity to work from 19.5.2017 to 16.6.2017 and, by means of a follow-up certificate, a continuing incapacity to work up to and including 30.6.2017. On the basis of this “initial certificate”, the health insurance fund stopped paying sickness benefit and referred the plaintiff to her employer. The employer refused to continue to pay the benefit on the assumption that the originally existing mental illness would continue beyond 19.5.2017 and finally until the later termination of the employment relationship. The employee filed a complaint and demanded continued remuneration from her employer.

The Labor Court upheld the complaint. The Higher Labor Court ( LAG) and the BAG have overturned the ruling and dismissed the complaint. The 5th senate of the BAG states the reasons for its decision:

“If the employee is incapable of work due to illness and is followed in close temporal connection by a further incapacity for work certified by means of the “initial certificate”, the employee must demonstrate and prove in the event of a dispute that the previous incapacity for work had ended at the time when the further incapacity for work occurred”.

The plaintiff had not succeeded in this in the dispute. The LAG had gathered comprehensive evidence by interrogating the doctors treating the plaintiff. According to this, it could not be established that the previous mental illness had been completely cured at the time of the initial certification on 18 May 2019. The plaintiff was not able to prove that there was no uniform case of prevention.

Accordingly, the employee has the burden of proof and demonstration for the beginning and end of the incapacity to work if, as a direct consequence of an illness exceeding the 6-week period, he claims continued payment of remuneration due to a new initial illness and the employer relies on the principle of the unity of the case of prevention.