Sick Leave – Rights and Obligations for Employees

If an employee is ill and may not be able to work, depending on the extent of the illness. A sick note must be sent to the employer. Furthermore, the employee is obliged to see a doctor after three days at the latest. Certain requirements must be observed. In principle, the employee continues to receive his wages even if they are ill up to a certain point.

Procedure for Correct Notification of Sickness

According to labor law, the employee is obligated to immediately notify the employer of sickness according to § 5 of the Continued Remuneration Act (EntgFG). If the notification is not made, there is usually the threat of a warning. In this case, notification of illness by telephone or e-mail is sufficient. At the latest if the illness lasts more than three days, it is necessary for the employee to visit a doctor. This diagnoses the illness and issues a certificate of incapacity for work.

During Corona, a Sick note for minor respiratory illnesses is also possible by telephone. An online sick note is now also available from various providers.

Time for Receipt of the Certificate by the Employer

A copy of the certificate of incapacity for work is intended for the employer as part of the so-called obligation to provide evidence. At the latest on the fourth day after notification of the illness, the certificate must be with the superior. This also results from § 5 EntgFG. However, it is important to observe the respective specifications of the employment contract. There may be deviating regulations here.

Notification of Illness to the Health Insurance Fund

In addition to the employer, the health insurance fund also requires a copy of the certificate of incapacity for work. This must be sent to the health insurance fund within one week. If the employee fails to do so, the employee is not entitled to sick pay if the illness lasts longer.

Extension of a Sick Leave Certificate

The certificate of incapacity for work is only valid for a certain period. After this period, a so-called follow-up certificate is required. This requires another visit to the doctor. This must take place no later than the next working day after the end of the previous certificate.

If the first certificate ends on a Wednesday, for example, the doctor must be seen on the following Thursday at the latest. If the sick leave is followed by a weekend, it is sufficient for the employee to see the doctor on Monday at the latest. The health insurance fund must also be notified again in this case.

Backdated Sick Leave

In exceptional cases, retroactive sick leave is also possible. This regulation applies, for example, to cases in which the employee only makes it to the doctor later due to his complaints. In this case, the doctor is permitted to write the employee off sick retroactively for up to two, but no more than three days.

Dismissal due to Illness

Under certain circumstances, sick leave may also result in termination of the employment contract. In most cases, Section 1 of the Dismissal Protection Act (KSchG) must be observed in this regard. It applies if the employee works for more than six months in a company with more than ten employees.

If, in the case of an illness, it is already foreseeable that the employee will remain permanently unable to work, termination is justified even after a shorter period. The last reason for termination concerns a permanent reduction in performance. In this case, the employee is only capable of working at two-thirds of the previous level after the illness.

Possible Conditions for Termination

In the event of illness, termination is only possible under certain conditions. Various cases can be considered. Firstly, there is a reason for termination if the employee is repeatedly ill for a short period of time. On the other hand, a prolonged illness of more than six weeks also entitles the employer to terminate the contract. In both cases, it is necessary that the condition is not expected to improve in the future.

Not without Company Integration Management

In all cases, the employer must ensure that a company integration management program (CIM) is carried out prior to termination. The employee must be offered a CIM meeting to discuss the current situation together and, if necessary, to develop alternative employment options. The employee is not obligated to attend a CIM meeting, which means that he or she can refuse it.

Sick during Unemployment

An unemployed person is obliged to inform the Federal Employment Agency as soon as possible that of the illness. In principle, the same regulations apply here as in the case of a dependent occupation. A visit to the doctor is therefore always necessary and the certificate of incapacity for work must be submitted to the employment agency without delay. Otherwise, the entitlement to unemployment benefits is forfeited.

Notification of Illness When Children Are Ill

If an employee’s children are sick, the employee has the right to stay home for a certain number of days. This results from Section 45 of the Fifth Book of the Social Code (SGB V). If both parents live together, an employee is entitled to up to ten so-called children’s sick days per year. Children’s sick pay then amounts to 90 percent of the parent’s net earnings. Single parents are entitled to twenty days. The entitlement applies per child. The precondition is that the child is less than twelve years old. In addition, the leave is only possible if no other person can take care of the child. Again, a medical certificate attesting to the child’s illness is required.

Increasing the Number of Sick Days for Children during the Pandemic

Working parents face a major challenge balancing work and childcare during the Corona pandemic, with schools and daycare centers closed. The federal government decided to increase children’s sick days if

• care – and educational institutions close to contain the corona virus.
• Decide to extend school vacations.
• suspending compulsory attendance or
• even advising that children be cared for at home.

Children’s sick days will be increased in 2021, so that each legally insured parent can apply for a total of 30 days per child instead of 10. If parents have multiple children, a maximum of 45 days may be claimed. For single parents, 60 children’s sick days per child apply, with a maximum of 90 days for multiple children.

Sick leave must follow the proper procedure in this case as well, as described above. The entitlement also applies to parents who work in a home office.

Private Health Insurance

Parents who have private health insurance, on the other hand, must claim compensation under Section 56 of the Infection Protection Act (IfSG).

Continued Payment of Wages and Wage Replacement in the Event of Illness

In the event of illness, employees are initially entitled to continued payment of wages in accordance with Section 3 EntgFG. They receive their normal wages for up to six weeks, even if they do not work. After that, employees are generally entitled to sick pay. This is a so-called wage replacement payment from the health insurance fund. If the employee has statutory health insurance, he or she also receives up to 78 months’ sick pay after the continued payment.

Amount of Sickness Benefit

Sickness benefit is between 70 percent of the regular gross income and 90 percent of the individual net income. When calculating the sick pay, the regular gross income (monthly gross, bonuses, special payments, etc…) as well as the net income play a role.