In German labour law, the principle “no work, no pay” applies. However, there are exceptions to this rule. One of the most important exceptions is the continued payment of wages in the event of the employee’s incapacity to work due to illness. In this case, the employee has a claim against the employer under §§ 3, 4 EFZG for continued remuneration for a period of 6 weeks, i.e. a claim to the full amount of regular pay.
Prerequisites for the entitlement to continued remuneration
The entitlement arises after four weeks of uninterrupted employment. The reason for the inability to work must be incapacity to work due to illness. An employee is incapacitated for work if he or she is no longer able to perform his or her work or can only do so at the risk of aggravating the illness.
The employee must not be at fault for the incapacity for work due to illness. According to case law, fault is to be assumed if the employee’s conduct is a gross violation of the personal interests of a reasonable person, which is the case for particularly careless or intentional conduct. The particularities of the individual case are always decisive. Fault on the part of the employee can be affirmed if he grossly disregards the accident prevention regulations or the safety instructions of his employer and an accident occurs as a result.
If the employee causes a traffic accident because he deliberately or in a particularly gross manner disregards his duties as a road user, for example because he is unfit to drive due to alcohol and nevertheless takes part in road traffic, the Federal Labour Court has also assumed fault on the part of the employee. In principle, the following applies: Only in rare cases does the jurisdiction assume fault on the part of the employee.
Duty to notify
The employee is obliged to inform the employer immediately of the incapacity for work and its probable duration. If the inability to work lasts longer than three calendar days, the employee must prove the inability to work by means of a medical certificate. As long as the employee does not comply with this notification and proof obligation, the employer is entitled to refuse to continue to pay remuneration. If a certificate is lost in the mail, the employee is still protected. He can have the certificate issued again and send it.
Entitlement to continued remuneration even on public holidays
The entitlement to continued payment of remuneration also exists on public holidays. Find out more about the requirements here.
Please note the short deadlines!
As with all claims for payment against the employer, short deadlines must often be observed!
If the conditions for the entitlement to continued remuneration are not (no longer) fulfilled, for example because the duration of the incapacity to work exceeds 6 weeks, the employee receives sickness benefit from the statutory health insurance for a maximum of 78 weeks in the amount of 70% of the regularly earned remuneration, but not more than 90% of the net monthly wage, §§ 44 – 51 SGB V. At most, the remuneration in the amount of the income threshold for health insurance contributions is taken into account.
Employees with statutory health insurance are entitled to continued remuneration for 10 working days per calendar year in the event of illness of a child who is not yet 12 years old and needs supervision or even care. If they are single parents, the entitlement increases to 20 working days per year. However, this only applies if the employer is not obliged to continue to pay the salary anyway. The answer to this question depends on the structure of the respective employment contract.