Continued payment of wages (continued payment) in the event of illness

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Basics

Continued payment of wages (continued payment) in the event of illness is one of the most important social benefits that the employer has to provide due to statutory provisions. The statutory basis is the Continued Pay Payment Act (EFZG).
Section 3 (1) EFZG:

If an employee is prevented from working due to sickness due to illness without being at fault, he is entitled to continued payment of sickness sickness by the employer for the period of the incapacity to work for up to six weeks. .

The regulations of the Continued Remuneration Act apply equally to all employees. There are no differences between the new and the old federal states. Section 1 EFZG states:

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(2) Employees within the meaning of this Act are workers and employees as well as those employed for their vocational training.

Entitlement to continued payment exists for 6 weeks.

A collective agreement or an employment contract can make provisions that deviate from the law. The agreements must generally be cheaper for the employee. A worse position than the legal basis is excluded.

All employees and trainees are entitled to continued payment in the event of illness in accordance with the Continued Payment Act. The level of employment does not matter. The claim therefore also applies to marginally employed (450-euro jobs and short-term employees). The only exceptions are home workers, home traders and their employees. As compensation, however, the employer receives a surcharge on the wages. Even in a temporary employment relationship, there is a right to continued payment in the event of illness. However, the waiting time must be observed in every employment relationship.

Origin of the claim – waiting time

Entitlement to continued payment only exists if the employment relationship has existed continuously for four weeks (Section 3 (3) EFZG).

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(3) The claim according to paragraph 1 arises after four weeks of uninterrupted employment.

The waiting period of four weeks can be reduced in favor of the employee by means of a collective agreement or a company agreement.

The waiting time is not counted towards the six-week entitlement to continued payment.

If the employee falls ill after the start of employment, but before the four-week waiting period has expired, he receives sickness benefit from the health insurance company until the end of the waiting period.

If work is not possible due to incapacity for work at the time of the agreed start of work, the four-week waiting period does not begin until the day of the agreed start of work. In these cases, entitlement to continued payment arises from the fifth week of the agreed start of work. The precondition is that the employment contract was concluded before the onset of incapacity to work.

Entitlement to continued payment ends on the last day of employment. If an employment relationship, for example, on 31.03. a possible continued payment would have ended at this point. That the sick leave over the 31.03. going out doesn’t matter. In this context, it is irrelevant whether the employment relationship ends with a fixed-term contract or with notice.

Entitlement to continued payment therefore presupposes the existence of an employment relationship and consequently ends with the end of the employment relationship.

Exceptions that do not lead to the premature end of the six-week entitlement period (§ 8 EFZG):

In the event of termination due to incapacity to work, the employer must continue to pay the wages beyond the termination of the employment relationship if the incapacity continues.
If the employment relationship ends at the instigation of the employer due to the inability to work through a termination agreement, the employer must continue to pay the wages beyond the termination of the employment relationship if the incapacity continues.
If the employee terminates the employment relationship for a reason for which the employer is entitled, which would also have entitled the employee to terminate the contract without notice, there is also a right to payment of the wages for up to six weeks.

When changing employers, it is irrelevant whether the employee was already unable to work in his previous employment. The right to continued payment in the event of illness arises with every new employment relationship. However, it only arises after the new employment relationship has existed continuously for four weeks.

Wage tax and social security treatment of continued payment

If the wages continue to be paid, the wages that have been paid in the calculation of wages tax and contributions must be treated like current wages.

If surcharges for Sunday, public holiday and night work were taken into account when calculating the continued payment entitlement, they cannot remain tax and contribution free like the surcharge paid. Tax exemption (within certain limits) is only considered for Sunday, public holiday and night work actually performed.

Concept of inability to work

Inability to work is deemed to exist if the employee is unable due to his state of health to carry out his last job or a similar type of job.

The employer must be notified of the incapacity to work immediately (Section 5 (1) Continued Pay Act).

Continued payment of wages due to illness can only be claimed if the inability to work due to illness is the sole cause of the prevention of work. Falls z. B. A strike in the incapacity to work of an employee from which he would also be affected, there is no entitlement to continued payment.

The Federal Joint Committee has the legal mandate to specify assessment criteria for the assessment of incapacity for work in its Disability Directive (AU-RL) (Section 92 (1) sentence 2 No. 7 SGB V).
Section 2 (1) Disability Directive:

Inability to work exists if, due to illness, the insured can no longer carry out their previous activity before the incapacity for work or only at the risk of worsening of the illness. The assessment must be based on the specific conditions that have shaped the previous activity. Inability to work also exists if it is foreseeable due to a certain illness, which does not in itself result in an incapacity for work, that adverse consequences for the health or recovery result from the exercise of the activity, which will immediately cause the incapacity to work.

Submission of a medical certificate of incapacity to work

Section 5 (1) of the Continued Remuneration Act applies:

The employee is obliged to immediately inform the employer of the incapacity for work and its expected duration. If the incapacity to work lasts longer than three calendar days, the employee must present a medical certificate confirming the existence of the incapacity for work and its expected duration no later than the following working day. The employer is entitled to request that the medical certificate be presented earlier. If the incapacity to work lasts longer than stated in the certificate, the employee is obliged to submit a new medical certificate. If the employee is a member of a statutory health insurance company, the medical certificate must contain a note from the treating doctor that the health insurance company will immediately be sent a certificate of incapacity for work with details of the findings and the expected duration of the incapacity to work.

This means that the employer can request a medical certificate from his employees on the first day of sickness (unless otherwise agreed in the employment or collective agreement). A current ruling by the Federal Labor Court confirms this legal situation:

An employee submitted a business trip application for November 30, 2010, which her supervisor did not meet. The worker reported sick on November 30 and returned to work the following day. The employer then asked the employee to consult a doctor on the first day of sick leave and to present a corresponding certificate.
The worker sued against this.
The Regional Labor Court in Cologne dismissed the suit by judgment of 14 September 2011 (3 Sa 597/11). The applicant’s revision was unsuccessful.

The Federal Labor Court thereby confirmed the applicable legal situation (judgment of November 14, 2012 – 5 AZR 886/11). Extract from press release No. 78/12 of the Federal Labor Court:

The exercise of the right granted to the employer by section 5 (1) sentence 3 EFZG is at the employer’s discretion. In particular, it is not necessary that a justified against the employee suspicion exists that he has only faked an illness in the past. This is only opposed by a collective agreement if it expressly excludes the employer’s right under section 5 (1) sentence 3 EFZG. That was not the case here.

Behavior during inability to work

The sick worker must refrain from doing anything that could delay his recovery. So he must always behave in such a way that he gets well again as soon as possible. However, illness is not a house arrest. Constant availability by phone in the apartment is not necessary. Only when the doctor orders strict bed rest does the patient have to adhere to it.

Leisure activities during an incapacity to work
Federal Labor Court judgment of 02.03.2006 – 2 AZR 53/05
Excerpt from the reasons for the decision:

The complainant seriously violated his duty of consideration in the employment contract due to the skiing vacation during the certified inability to work.
An employee who is unable to work must behave in such a way that he soon gets well and can return to his job. He must refrain from anything that could delay his recovery. To this extent, the sick employee has to protect the interests of the employer that are worth protecting. arising from the obligation to continue payment of remuneration, to be considerate. According to the case law of the BAG, a serious breach of this duty of consideration may justify extraordinary termination for an important reason (11 November 1965 – 2 AZR 69/65 – AP ArbKrankhG § 1 No. 40 = EzA ArbKrankhG § 1 No. 16; 13. November 1979 – 6 AZR 934/77 – AP KSchG 1969 § 1 Disease No. 5 = EzA KSchG § 1 Behavioral Termination No. 6; August 26, 1993 – 2 AZR 154/93 – BAGE 74, 127; ErfK-Müller-Glöge 6th edition § 626 BGB margin no. 244; Stahlhacke / Preis / Vossen termination and protection against dismissal in the employment relationship 9th edition marginal 712).

The violation of the obligation to promote health-promoting behavior during an incapacity to work is therefore generally suitable as a reason for dismissal. However, a warning is often required before giving notice of termination. In the event of a significant violation, termination without notice can also be given.

Termination without notice due to secondary employment during the continued wage payment period
Federal Labor Court judgment of August 26, 1993 – 2 AZR 154/93
Guidelines:

1. If an employee works part-time at another employer during a medically certified incapacity for work, depending on the circumstances, termination without notice without prior warning may be justified.
2. If, in such cases, the probative value of the medical certificate is shaken or invalidated, the employee has to explain in concrete terms why he was absent due to illness and was still able to take on part-time work.

If there are doubts about the inability to work, the employer can ask the employee’s health insurance fund for an assessment at the medical service of the health insurance (MDK).

Self-inflicted illness

The precondition for continued payment in the event of illness is that the employee is not at fault for his incapacity to work. However, the right to continued payment is excluded only through intent or gross negligence on the part of the employee. Section 3 EFZG states:

(1) If an employee is prevented from working due to sickness due to illness without being at fault, he is entitled to continued payment of sickness sickness by the employer for the period of the incapacity to work for up to six weeks.
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(2) An inability to work within the meaning of subsection 1 is also considered to be an obstacle to work that occurs as a result of unlawful sterilization or an unlawful termination of pregnancy. The same applies to termination of pregnancy if the pregnancy is terminated by a doctor within twelve weeks of conception, the pregnant woman requests the termination and has shown the doctor by means of a certificate that she has at least three days before the intervention of one recognized advice center has given advice.

Here you can only list examples, because it always depends on the circumstances of the individual case (case law).

Examples of self-incapacity:

Even accused traffic accidents

Workers have to be particularly rough violation of have the traffic rules available
Driving under the influence of alcohol or drugs
Taking medications that reduce the ability to react according to the package insert
Use of worn tires
Not wearing the seat belt
Driving too fast in the dark, in the rain, on black ice or in thick fog

If you are addicted, you may have to test your own fault for the illness. Drug addiction, alcoholism, alcohol addiction are not considered self-inflicted from the start. All individual backgrounds must be checked.

Gross violation of the accident prevention regulations of the professional association

Injuries during a particularly dangerous part-time job

Injuries from a self-provoked brawl

Calculation of the six-week period

The six-week period generally begins on the day after the incapacity to work begins. However, if the incapacity to work occurs on a working day before the start of work, that day counts.

If the employee is unable to work in succession due to various illnesses, there is a right to continued payment of up to six weeks for each illness. This also applies if a disease occurs immediately after the first illness has been completed.

Principle of unity of prevention

This is a legal principle developed by the Federal Labor Court. This has not been corrected by the legislature in the event of multiple changes in the right to continued payment in the event of illness. After that, the six-week period does not depend on the illness but on the prevention of work. The Federal Labor Court confirmed this principle in a judgment of May 25, 2016 (5 AZR 318/15).

The entitlement of a worker to continued payment of wages is also limited to six weeks since the beginning of the incapacity to work if a new illness occurs during an existing incapacity to work, which also leads to the incapacity to work. In this case, the employee can only claim the six-week period once, provided the duration of the preventive work caused by both illnesses is appropriate (Federal Labor Court: judgment of 12.09.1967 – 1 AZR 367/66 and judgment of 02.12.1981 – 5 AZR 89 / 80).

This means that there are two independent cases of prevention only if an employee actually works between two illnesses or if he was able to work between the two illnesses but was actually unable to work because he was only able to work for a few hours outside of working hours.

Federal Labor Court, judgment of December 11, 2019 (5 AZR 505/18): Continued payment in the event of illness – unit of the case of disability
Extract from press release No. 45/19:

The statutory right to continued payment in the event of illness is also limited to a period of six weeks if a new illness due to another basic illness occurs during existing incapacity for work, which also results in incapacity for work (principle of unity of prevention). A new entitlement to continued payment only arises if the first illness-related preventive work had ended at the time when the further illness led to inability to work.
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If the employee is unable to work due to illness and this is closely followed by one in the way of "corresponding certificate" attested to further incapacity for work, the employee must state in the event of a dispute and demonstrate that the previous incapacity to work had ended when the further prevention of work occurred.

If a measure of preventive medical care and rehabilitation in accordance with Section 9 (1) of the Continuing Pay Act and an incapacity to work due to illness in accordance with Section 3 (1) Continuing Pay Act do not apply the principles developed by the Federal Labor Court regarding the unity of incapacity (Federal Labor Court judgment of 10.09.2014 – 10 AZR 651/12).

However, if the same illness repeatedly leads to incapacity to work within twelve months, the previous incapacity to work is counted towards the entitlement to continued payment. If there are at least six months between two incapacities for work, a new entitlement to continued payment of six weeks arises. Section 3 (1) EFZG states:

(1) .
If the employee becomes unable to work again as a result of the same illness, he will not lose the right under sentence 1 for a further period of no more than six weeks because of the new incapacity to work if
1. he was not unable to work due to the same illness for at least six months before he was unable to work again, or
2. A period of twelve months has elapsed since the first incapacity to work due to the same illness.

Since all 4 periods of incapacity to work are the same illness, you are not always entitled to continued wages. In the case of the first illness, there is a legal entitlement to continued wage payment for 6 weeks. Since there are less than 6 months between the first and second illness, there is no entitlement to continued wages for the second incapacity to work. For the third illness, the 12-month period now counts. A period of twelve months has not expired since the first incapacity to work due to the same illness. The 6-month period is also not met because there are only two months between the second and third illnesses. In this context, it does not matter that the second incapacity to work ended without the employer continuing to pay wages. For the fourth incapacity to work, you are again entitled to continued wages for at least 6 weeks. A period of twelve months has passed since the first incapacity to work due to the same illness.

Sickness benefit for employees

Insured persons are entitled to sickness benefit if an illness renders them unable to work or if they are treated in hospital at a hospital, preventive or rehabilitation facility at the expense of the health insurance fund. The regulations on sick pay can be found in Sections 44 to 51 SGB V.

The statutory health insurance provision strengthening law (the main parts of which came into force on July 23, 2015) brought about a new regulation of entitlement to sickness benefit.
According to the old regulation, entitlement to sickness benefit began on the day following the doctor’s assessment of the incapacity to work, and inpatient treatment from the beginning.
The new regulation of § 46 SGB V reads:

Entitlement to sickness benefit arises

in the case of hospital treatment or treatment in a preventive or rehabilitation facility (section 23 (4), sections 24, 40 section 2 and section 41) from the beginning,

otherwise from the day of the medical examination of the incapacity to work.

The entitlement to sickness benefit continues until the day on which further incapacity for work due to the same illness is determined by a doctor, if this medical assessment is made no later than the next working day after the last certified end of the incapacity for work; In this respect, Saturdays are not considered working days. For those insured under the Artists’ Social Insurance Act and for insured persons who have submitted an election declaration in accordance with Section 44 Paragraph 2 Sentence 1 Number 2, the entitlement arises from the seventh week of incapacity to work. The right to sickness benefit for the insured persons mentioned in sentence 3 according to the Artists’ Social Insurance Act arises before the seventh week of incapacity to work at the time specified in the statutes, but at the latest at the beginning of the third week of incapacity to work if the insured person receives a tariff from his health insurance fund in accordance with § 53 para. 6 has chosen.

As long as the employer has to continue to pay wages, the entitlement to sickness benefit is suspended. After the continued payment of the wages, sickness benefits are paid in by the health insurance company.

The amount of sickness benefit per calendar day is based on the employee’s regular income. Sickness benefit amounts to 70 percent of the regular wages and earnings earned, insofar as it is subject to the contribution calculation (regular wages). However, a maximum of 90 percent of the net remuneration (§ 47 SGB V).

year	monthly contribution ceiling for health and nursing care insurance	Maximum daily remuneration on a calendar day (monthly contribution ceiling / 30 days)	Maximum daily sickness benefit per calendar day (70% of the maximum regular salary)
2014	€ 4,050.00	€ 135.00	€ 94.50
2015	€ 4,125.00	€ 137.50	€ 96.25
2016	€ 4,237.50	€ 141.25	€ 98.88
2017	€ 4,350.00	€ 145.00	€ 101.50
2018	€ 4,425.00	€ 147.50	€ 103.25
2019	€ 4,537.50	€ 151.25	€ 105.88
2020	€ 4,687.50	€ 156.25	€ 109.38

social security contributions

There are no contributions to health insurance during the period of receiving sickness benefit (neither for employers nor for employees). The recipient of sickness benefit is therefore insured free of charge.

In pension, unemployment and long-term care insurance, the employee pays his employee shares from his sick pay (as from his wages or salaries). The health insurance company pays the employer’s shares.

Amount of continued payment

During the continued payment of wages, the wages that the employee would have received without the incapacity for work continue to be paid. Tariff increases or shorter working hours therefore have an impact on continued payment in the event of illness. The principle of loss of wages (current, contemporary perspective) applies. In collective agreements, however, average earnings are often specified as the basis for calculating continued wages. If the hourly wage increases, the average values must be corrected. The hours of the average period must therefore be re-evaluated with the other hourly wage. The continued pay also includes risk, hardship, night, Sunday or holiday surcharges as well as capital-added benefits granted by the employer in addition to wages.
If an employee should have worked on a Sunday or a public holiday but is absent due to illness, then the continued payment of wages must include an agreed (collective agreement, company agreement or employment contract) Sunday or holiday surcharge. However, there is no statutory entitlement to a wage supplement for Sunday and holiday work. If the other employees get it, the sick employee must also get it as continued wages.
There is a judgment of the Federal Labor Court from January 14, 2009 – 5 AZR 89/08.
Excerpt from the reasons for the decision:

The principle of loss of earnings generally gives the employee full remuneration, including any surcharges. Only services that are not linked to the performance of the work in a certain period of time, but are paid independently of it for a special occasion, are disregarded.
Continued payment of pay for holiday work canceled due to sickness incapacity includes the corresponding surcharges, the same applies to Sunday surcharges. These surcharges are additional consideration for the particularly annoying or stressful work to be performed on Sundays and public holidays. As compensation, these surcharges do not count towards reimbursement of expenses in the sense of Section 4 (1a) sentence 1 EFZG, which is not owed in the event of illness.

Find no consideration for continued wages:

Overtime allowances and overtime bonuses
reimbursement of expenses
trips
Driving subsidies
dirt allowances

Section 4 (1a) EFZG states:

(1a) The remuneration according to paragraph 1 does not include the additional remuneration paid for overtime and benefits for the employee’s expenses insofar as the entitlement to them in the case of work capacity depends on the fact that the employee actually incurred corresponding expenses and the employee such expenses do not arise during the incapacity to work. .

There have been problems in the past in connection with Section 4 (1) EFZG. It says:

(1) For the period specified in Section 3 (1), the employee must continue to be paid the remuneration due to him for the regular working hours that are decisive for him.

There were problems with the definition of overtime or the determination of the relevant regular working hours.

Pursuant to Section 4 (1) a of the Continuation of Remuneration Act, neither remuneration nor surcharges for overtime work are to be taken into account when continuing remuneration.
The wording of the law also includes repeated overtime hours.
Overtime within the meaning of Section 4 (1) a of the Continued Remuneration Act only applies if this is temporarily performed due to certain special circumstances.

There is a fundamental judgment on this matter from the Federal Labor Court in Erfurt (BAG, November 21, 2001 – 5 AZR 457/00). Thereafter, regular overtime must be taken into account when continuing to pay wages.

If an employee works with a certain regularity beyond the standard or normal working hours, the individual regular working hours are to be determined based on the average of a reference period of 12 months before the onset of incapacity to work.
If the employment relationship lasted less than 12 months at the beginning of the incapacity to work, the entire period is decisive.
The employer bears the burden of proof and proof that overtime was worked during this period, which leads to a reduction in the average relevant regular working hours.

If short-time work is introduced in the company, the reduction in working hours also has an impact on continued wages. Section 4 (3) EFZG states:

(3) If shortened work is carried out in the company and therefore the employee’s wages would be reduced if he was able to work, the shortened working hours shall be regarded as the regular working hours for the employee within the meaning of paragraph 1. .

In the case of salary recipients, the salary will continue to be paid during the entitlement to continued payment.

Special cases – coincidence of illness and other facts

If an illness occurs during the vacation, the sick days are not counted towards the vacation days. There is a right to continued payment in the event of illness.

If there is a public holiday in the period of continued sick pay in the event of illness, the remuneration will continue to be paid due to the illness. The amount of the fee is based on the holiday regulations. The right to six weeks’ sick pay is extended by public holidays which are not within this period.

There is no entitlement to wages during parental leave because the employment relationship is suspended. This means that there is no need to continue paying wages in the event of illness. If part-time employment is carried out during parental leave, this employment is entitled to continued payment in the event of illness.

Long-term illness and entitlement to vacation

A long-term illness of an employee does not change the emergence of the vacation entitlement. If an employee is on sick leave for the entire calendar year, he is entitled to full annual leave. This vacation entitlement must then be transferred to the first quarter of the following year (Section 7 (3) Federal Vacation Law).

According to the old legal situation, the transferred one expired vacation, if the employee by 31.03. of the following year was sick and was therefore unable to take the vacation during the transmission period.

The European Court of Justice ruled on January 20, 2009 that the entitlement to paid annual leave remains despite a long illness. The vacation entitlements of sick employees no longer automatically expire at the end of the vacation year or the transfer period. Subject to a deviation in favor of the employee stipulated in the collective agreement, the transfer period is three months. This leave must either be granted (if the employment relationship continues) or paid financially.

The judges of the Federal Labor Court (BAG) have followed the judgment of the European Court of Justice, thereby overturning their previous case law. The BAG limited the protection to the statutory minimum leave of 24 working days per year.

There is another judgment on this matter from the Federal Labor Court in Erfurt (BAG, 23.03.2010 – 9 AZR 128/09). According to this, the right to compensation for severely disabled additional leave in the event of incapacity for work continues to exist, as well as the right to compensation for minimum leave. The parties to the collective agreement, on the other hand, can stipulate that the collective holiday allowance entitlement going beyond the statutory minimum holiday expires if the holiday entitlement cannot be fulfilled due to the illness of the employee.

If the employee is healthy again, he must take the accumulated vacation entitlements in the current calendar year to prevent the expiry (BAG, 09.08.2011 – 9 AZR 425/10).

On November 22, 2011, the European Court of Justice ruled that vacation entitlements of long-term employees could be limited to 15 months. According to the judges, a transfer period of 15 months after the end of a calendar year is permitted by law or collective agreement.

After the judgment, the question was still open as to whether a transfer period of 15 months regulated in an individual employment contract is also permissible. It was also unclear whether the legislature still has to issue a corresponding standard or whether the upper limit of 15 months applies immediately.
On 21 December 2011, the Baden-Württemberg State Labor Court created further clarity with the judgment 10 Sa 19/11. According to the judges, leave entitlements cease at the latest 15 months after the end of the leave year in the event of continuous incapacity for work and are not compensated for if the employment relationship is terminated later.

Long-term illness and occupational integration management

Companies have to be committed to keeping all employees healthy, who are sick longer or more often and are therefore absent from work for more than 6 weeks within a year. The representation of interests of the employees (works council or, in the public service, the staff council) must be included. In the case of severely disabled and equivalent employees, the representative for the severely disabled must also be included (Section 167 (2) SGB IX).
Operational integration management can only be carried out with the consent of the employee. Participation is therefore voluntary for the employee.
A distinction must be made between this and the patient return interview. At the employer’s request, a medical return interview can take place after returning to work. Participation is mandatory for the employee.
Detailed information on operational integration management

Termination due to illness

If the dismissal protection law applies (usually in companies with more than 10 employees), ordinary termination by the employer requires social justification. With regard to termination reasons, a distinction is made between personal, behavioral and operational reasons. Termination due to illness of the employee is one of the personal reasons.

According to the case law of the Federal Labor Court, the social justification of dismissals given on the basis of illness must be examined in three stages (Federal Labor Court judgment of 30.9.2010, 2 AZR 88/09).

In the case of long-term illness, dismissal is socially justified (Section 1 (2) KSchG) if there is a negative prognosis regarding the likely duration of the incapacity to work (negative health forecast – first stage).
There is a significant impairment of operational interests based on this (second stage).
A balance of interests reveals that the operational impairments lead to a burden that cannot reasonably be accepted by the employer (third stage).

In the event of permanent incapacity due to illness, it can generally be assumed that operational interests will be significantly impaired.

Federal Labor Court judgment of 30.9.2010, 2 AZR 88/09
Excerpt from the reasons for the decision:

A termination is disproportionate and therefore legally ineffective in accordance with the principle of proportionality, which governs the entire right of termination, if it can be avoided by other means, i.e. if it is not necessary to remedy the operational impairments or the contractual disruption that has occurred. In the event of termination due to illness, it is not only possible to continue working in another free job. Rather, the employer must take into account all equivalent, passionate workplaces where the employee concerned could be deployed under the exercise of the right of management and, if necessary,. "free up".
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According to Section 1 Paragraph 2 Clause 4 KSchG, the employer bears the burden of proof and evidence for the facts that cause the termination. This includes explaining the lack of – alternative – employment opportunities.

Before an illness-related dismissal is pronounced, an operational integration management must be carried out as a rule.

Reimbursement of continued payment – U1 pay-as-you-go system

Small businesses (employers with up to 30 employees) must participate in the U1 pay-as-you-go system (continued payment in the event of illness). By paying a contribution, employers receive a certain percentage of continued wages paid by the health insurance company in the event of illness. The health insurance companies generally have optional tariffs (higher levy = higher reimbursement). There is no 100% refund.

Reduction of special allowances due to illness

The admissibility of reducing special payments (holiday allowance, Christmas bonus,.) Due to illness is regulated by law. Section 4a EFZG states:

An agreement on the reduction of benefits that the employer provides in addition to the current wages (special allowances) is also permissible for periods of inability to work due to illness. For each day of incapacity to work due to illness, the reduction must not exceed a quarter of the wages, which are averaged over one working day per year.

So there must be an agreement (employment contract, company agreement or collective agreement) for the reduction. The law did not regulate the basis on which the annual average should be calculated. Therefore, this should also be clarified in the agreement.

An employee with a salary of € 2,600 receives a Christmas bonus of € 1,000. Annual earnings without the Christmas bonus is € 31,200 (12 * € 2,600).
The gross wage is to be divided by the number of annual working days (including vacation days). With a 5-day week, 260 working days are to be incurred in the year.
This accounts for 120 € per working day (31,200 € / 260 working days)
The reduction may amount to € 30 for each day of incapacity to work due to illness (25% of € 120)

If the employee is unable to work due to illness for 20 working days per year, the reduction can amount to a maximum of € 600 (€ 30 * 20).

In the case of an incapacity to work of 34 working days a year, the employer does not have to pay any Christmas bonus in our example (€ 30 * 34 = € 1,020).

Sick pay fraud

Continued wage fraud is a common problem that companies from all industries have to deal with.

Continued wage fraud is a criminal offense that enables termination without notice for an important reason in accordance with § 626 BGB.

Employers should contact a detective agency specializing in continued wage fraud for a suspect employee on the first day of illness. As few people as possible should know about this measure.

History of continued payment

In 1931, 100% continued payment of wages by the employer in the event of illness of an employee was mandatory. As a result, it could no longer be restricted or excluded by the employer or in collective agreements.

In 1957, workers were also legally required to continue paying sick wages (not 100%).

The full and mandatory continuation of wages in the event of illness in the amount of 100% by the employer is only available to workers with the law of 27.07.1969.

The continued payment of wages in the event of illness was only put on a uniform basis with the Continued Pay Act of June 1st, 1994.

The legal provisions regarding continued payment continued to be changed with effect from October 1, 1996. The amount of continued payment of wages was reduced to 80% of the wages. Sick days and cures were counted towards the vacation.

The Continued Pay Payment Act was substantially changed again from 01.01.1999. The right to continued payment of wages is once again 100%. The counting of sick days as well as absent days due to a cure on the annual leave has been dropped.