Labour law

Certificate of incapacity for work is not always sufficient for continued payment of remuneration

If the employee is unable to work for more than six weeks, the certificate of incapacity for work (AU) is not sufficient to automatically receive continued payment of remuneration. There must be no continuation of the illness, which the employee must prove. This was decided by the Hesse Regional Labor Court (LAG, 10 Sa 898/21).

What happened

The plaintiff was incapacitated for work to a considerable extent in the calendar years 2019 and 2020. In the period from August to December 2019, he was ill for 68 calendar days, and in the period from January to August 2020, he was ill for 42 calendar days. On August 18, 2020, the plaintiff submitted another initial certificate and demanded corresponding continued payment of remuneration. However, the defendant employer had doubts that there was a new illness and therefore refused continued payment of remuneration. The plaintiff objected that he had submitted initial certificates for the period in question, which showed that there were no previous illnesses. For data protection reasons, he was also not obliged to disclose all diagnoses.

Continued payment of remuneration only in case of “new” illness

The court dismissed the claim and based its decision on the fact that the AU does not contain any information on the existence of a continuing illness. The background to this is that continued payment of remuneration ceases if the illness lasts longer than six weeks. However, the employee is still entitled to continued payment of remuneration if the renewed incapacity for work is due to a different illness.

The decision results in the following principles for practice: First, the employee must prove that there is no continuing illness. To this end, he can submit a medical certificate.

Employee must prove

If the employer disputes the existence of a new illness, the employee must present the facts that allow the conclusion that there was no continuation of the illness. In order to meet this graduated burden of proof, the employee must in principle substantiate all illnesses in the annual period. The employee cannot make a “pre-selection” and only provide information on those illnesses which appear to him to be possibly relevant.

Data protection: Health data may be processed under certain conditionsThis obligation does affect the employee’s right to informational self-determination. However, it is justified according to the General Data Protection Regulation (DSGVO) and the Federal Data Protection Act (BDSG). There, the processing of health data is permitted if it is necessary for the assertion, exercise or defense of legal claims or in the case of actions by the courts in the course of their judicial activities.

German Lawyer at Law Firm Ferner Alsdorf
I am a specialist lawyer for criminal law + specialist lawyer for IT law and dedicate myself professionally entirely to criminal defence and IT law, especially software law. Before becoming a lawyer, I was a software developer. I am an author in a renowned commentary on the German Code of Criminal Procedure (StPO) as well as in professional journals.

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German Lawyer Jens Ferner (Criminal Defense & IT-Law)