History of continued payment of wages in the event of illness in Germany

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The history of sick pay in Germany probably began in the 12th and 13th centuries.

Pre-industrial regulations on continued payment of wages in the event of illness

Regulations in Roman law

Whether there was a form of continued wage payment in the event of illness in Roman law can no longer be determined with certainty today. Based on various writings from the 12th and 13th centuries, a system for the "service rent" (= employment relationship) is presented, which differentiates between culpable impossibility and accidental impossibility. In the case of the chance impossibility, it was further differentiated in which person the chance lay.

If the employee was responsible for the impossibility, he was liable for damages; if it arose in his person by chance (e.g. illness through no fault of his own), he was only entitled to wages for the work actually performed; there was no further wage entitlement. Continued payment of wages in the event of illness existed at most in the case of illnesses caused by the employer.

Regulations in the Prussian General Land Law

A pronounced labor or service law cannot be identified for the General Land Law for the Prussian States (ALR). The Prussian ALR was the legal work of a corporate society, in which consideration was given to the way of thinking, the customs and habits of the century, and especially to the classes. For example, the Prussian ALR of 1794 did not offer general service contract law, but differentiated strongly between different types of employment relationships. The employment relationships of the servants, hired handicraftsmen and day laborers, craftsmen and artists, manufacturers, journeymen, miners etc. were regulated in separate sections - sometimes with references to the general contractual part of the Prussian ALR. The reason for this is, on the one hand, the fact that the individual classes were by no means homogeneous, but in turn had social subdivisions, the delimitation of which was regulated by the ALR; on the other hand, in its scattered labor law regulations, the ALR largely followed the "professional" principles that had been developed by the craft guilds or by employee associations.

Due to the large number of these regulations, it is hardly possible to provide a detailed description of the individual regulations on providing care for employees in the event of illness. As an example, three sub-areas should therefore be presented here.

  1. The mining law in the Prussian ALR was essentially based on the traditional institutions of the common German mining law, which had developed in Bohemia, Saxony and the Harz Mountains since the 14th century. The ALR determined for the miners in ALR II 16 §§ 214 ff. That - depending on the type of mine - a sick miner was entitled to four or eight weeks of continued wages. If the illness lasted longer, the Knappschaftskasse took over the catering for the sick person.
  1. The right of servants in the Prussian ALR was regulated in connection with the regulations on the family, because the prevailing view was that servants should be counted as part of the domestic community. From the regulations in the ALR, the Prussian servant order developed in 1810 . In the case of an illness of servants, a distinction was made here as to whether the illness occurred "through the service or on the occasion of the same" or independently of the service. In the first case, the employer had to provide food and cure without being able to deduct the resulting costs from the wages; in the second case, this obligation only arose if the servants had no legally obliged relatives nearby or if they did not meet their obligation followed. Insofar as there were public institutions “where such sick people were admitted”, the employer could meet his duty of care by placing them in such an institution and deduct the costs for the accommodation from the “wages of the sick servant that were allocated to this period”. The obligation to care for sick servants lasted until the end of the agreed period of service. After that, the care was left to the "poor authority".
  1. The "most general" regulations in the Prussian ALR of 1794 were found for hired manual workers and day laborers. In the regulation of the impossibility of the work owed, the same distinction can be found here as in Roman law: Illness was - provided it was not caused by anyone - as a coincidence in the person of the employee with the legal consequence that there was no entitlement to continued payment of wages. If the employer was responsible for the illness (impossibility), the entitlement to wages remained. The problem, however, was that this “general” principle only applied to manual workers and day laborers and, above all, that it was almost completely inapplicable, since contracts with manual laborers and day laborers were only valid for the day in question and long-term contracts were rarely concluded.

In summary, it can be stated that the Prussian ALR did not create any independent regulations on continued payment of wages in the event of illness, but only made use of existing social security systems or traditional regulations. Employees who were not under the influence of such systems could not assert any claims in this regard.

Regulations until the BGB comes into force

The emergence of labor law

In Prussia, the Prussian reforms made it possible to introduce freedom of trade as a prerequisite for the country's economic rise and industrialization. Important measures for this were the liberation of the peasants from serfdom, which was initiated in 1807 and the repeal of the guild regulations in the years 1810 and 1811. In connection with the technical innovations that changed the exploitation of mineral resources and the work processes in the craft sector and labor productivity pushed forward, industrialization could develop in Germany since around 1830. Members of a rural lower class were available as workers, most of whom were recruited from former serf farmers. In addition, journeyman craftsmen were forced to do industrial work in the cities due to the decline in craftsmanship caused by industry. The catastrophic social conditions of wage workers, which went hand in hand with the beginning of industrialization, subsequently led to the first protective laws, such as For example, the Prussian regulation of 1839, which limited the work of children between 9 and 16 years of age to ten hours a day (to ensure the health of the "recruiting material"). In addition, the workers began to set up support funds for self-help in the event of illness and death.

The first labor law provisions can be found in the Prussian trade regulations of 1845, which primarily served to legally establish freedom of trade. This was the forerunner of the trade regulations of the North German Confederation of 1869, which were adopted as the Reich trade regulations in 1871. The GewO did not initially provide for continued payment of wages in the event of illness.

In the course of the 19th century, based on the support funds, further workers' associations were formed whose activities, beyond the goal of social security, aimed to influence working conditions. This led to the establishment of the first trade unions in the late 1840s. The trade unions and the Social Democratic Workers' Party , founded in 1869, gained increasing influence and could not be eliminated by the Socialist Law of 1878 (until 1890), but increased their influence even in illegality. From the beginning of the 1880s onwards, Bismarck's policy consisted of using constructive state measures to improve the social situation of the workers in order to weaken their political organization, the Social Democratic Party. Since 1883, health, accident and pension insurance were therefore introduced by the social laws. The Workers Protection Act of 1891 can also be classified in this political context.

The General German Commercial Code

The Prussian General German Commercial Code (ADHGB) of 1861 was the first law in which the right to continued payment of wages was regulated in the event of an involuntary inability to work. The beneficiaries were only so-called clerks , which was granted by the law a six-week salary and maintenance continued payment in the event the employee is prevented because of a "no fault accident".

With the regulation of the legal status of commercial employees in the ADHGB, the foundation stone was laid for the different treatment of workers and employees, which continues to apply to this day: Due to their position as auxiliary staff in the organization of the company, the employees had a prominent position due to their special Legal status was taken into account. Thus, the continued payment of salary in the event of illness emerged as a privilege of the (executive) employees. The regulations of the ADHGB were incorporated into the German Commercial Code (HGB) in 1897 .

The labor protection law

In 1891, the Labor Protection Act extended the trade regulations to the effect that Sections 133a to 133e regulate the “conditions of company officials, foremen, technicians”. The new regulations dealt primarily with termination of employment. Such a termination was possible according to § 133c Paragraph 1 No. 4 of the Trade Regulations if the obligated persons “are prevented from performing their duties by persistent illness or by a longer prison sentence or by absence”. With this possibility of termination, however, a continued payment regulation in paragraph 2, sentence 1 corresponded in such a way that "in the case of 4 [...] the entitlement to the contractual services of the employer [remained] in effect for a period of six weeks if the performance of the services involuntary misfortune has been prevented ”. However, this entitlement to continued payment of wages was reduced by the amounts to which a possibly existing entitlement against the accident or health insurance existed (Section 133c (2) sentence 2 of the trade regulations).

The health insurance

The offsetting of insurance benefits regulated in the trade regulations referred to the law on health insurance for workers that came into force in June 1883 as the first of the Bismarck social laws. Half of the contributions were paid by the employer and the employee. The sponsors were the existing guild and miners' funds as well as the local health insurance funds. The benefits consisted of free medical treatment and sickness benefit, which was paid from the third day of illness up to a maximum of 13 weeks. The sick pay of the health insurance companies is not to be understood as a regulation of continued wage payment in the narrower sense; However, the existence of this form of social security made demands for legally regulated continued payment of wages in the event of illness dispensable.

Regulations up to the establishment of the Federal Republic of Germany

§ 616 BGB

With the entry into force of the German Civil Code (BGB) in 1900, a regulation was created in Section 616 of the German Civil Code on the continued payment of wages for all employees, unless these were subject to the more specific regulations in the Commercial Code (HGB) or in the Industrial Code (GewO). However, like the existing regulations, this regulation was mandatory in individual contracts.

The wording of § 616 BGB is the one that this provision has today (again):

The person obliged to provide the service does not lose his entitlement to remuneration if he is prevented from performing the service for a relatively insignificant amount of time for a reason inherent in himself through no fault of his own.

The motives for the Civil Code show that this regulation was created as a deviation from the general principles (Section 323 old BGB) for socio-political considerations and for reasons of humanity. Reference was made to Art. 60 ADHGB, Art. 341 of the Swiss Code of Obligations (1881) and common law. The answer to the question of what is meant by “relatively insignificant time” is “impracticable because of the diversity of the employment relationships in question”, but it can be left to the courts without risk. The minutes show that the relationship between absenteeism and length of service should be decisive here.

The legislature of the BGB took up the distinction between fault and chance in the person, which already existed in Roman law, with the difference that chance in the person of the employee was no longer equated with his fault, but was at the expense of the employer.

With the entry into force of the German Civil Code (BGB), there were three legal regulations governing continued payment of wages in the event of illness: Section 133c of the Trade Regulations, Section 63 of the Commercial Code and Section 616 of the Civil Code. The qualitative difference was that in Section 616 of the German Civil Code (BGB) a period for continued pay was not specifically named, while the other provisions provided for continued pay for up to six weeks, which made for a better position for executives covered by these regulations. However, due to the fact that all three provisions were mandatory , their effect in practice was limited.

The emergency ordinances of 1930/31

The regulations on continued remuneration underwent a decisive change in the emergency ordinances of the Brüning Cabinet in 1930 and 1931: The right to continued remuneration according to § 63 HGB, § 133c GewO and § 616 BGB was initially declared to be indispensable in general, but six months later however, this ordinance was retrospectively changed to the effect that the indispensability according to Section 616 (2) of the German Civil Code (BGB) only applied to salaried employees and a period of up to six weeks was specified for them as “relatively insignificant time”. As a result, the continued payment of wages for workers in the event of illness was regulated in accordance with Section 616 (1) of the German Civil Code (BGB) with the possibility of contractual waiver and without a fixed maximum period for continued payment of wages. For employees, however, there was an indispensable entitlement to continued salary payment in the event of illness for a period of up to six weeks. Collective agreements made workers better off, but such collective agreements were the exception, especially since the unions were crushed by the National Socialists eleven months later.

The development of continued pay in the event of illness in the Federal Republic of Germany

The creation of the Law on Continuing Wages in 1969

During the time of National Socialism and after the end of the war, the regulations on continued payment of wages in the event of illness were initially not changed. The resulting unequal treatment of workers and salaried employees was taken up by the German Trade Union Federation (DGB), which in February 1955 submitted a proposal to the parliamentary groups to amend Section 616 of the German Civil Code (BGB), in which the right to mandatory six-week wages was also provided for workers. The SPD parliamentary group then introduced a corresponding draft law to the Bundestag. The corresponding amendment to Section 616 of the German Civil Code (BGB) was planned, as well as a compensation procedure that was intended to relieve smaller companies (up to 100 employees) from the costs arising from continued payment of wages.

The draft law failed because it was feared that the change would put too great a financial burden on the economy.

IG Metall then carried out a sixteen- week strike in Schleswig-Holstein in the winter of 1956/57 , through which (among other things) continued wages were to be enforced for workers in a collective agreement. In the summer of 1957 a parliamentary majority was found in the Bundestag for a change in the legal situation. However, this did not consist in the amendment of § 616 BGB, but in the creation of the law to improve the economic situation of workers in the event of illness . In this case, no continued payment of wages by the employer was provided, only a supplement to sick pay. This subsidy topped up sick pay to 90 percent of net wages. The claim against the employer arose - like the claim to sickness benefit - from the third day of illness, it existed for a period of up to six weeks.

This regulation was expanded four years later by the law amending and supplementing the law to improve the economic security of workers in the event of illness to the effect that the employer's sick pay allowance was increased so that the workers received their net wages for six weeks in the event of illness and that the entitlement to this amount arose from the second day of illness.

This so-called "split solution" was criticized because there was still a legal and actual inequality of treatment of workers and employees.

The de facto equality of workers and employees with regard to the continued payment of wages in the event of illness was then achieved in 1969 through the "Law on the continued payment of wages in the event of illness and on changes to the law of statutory health insurance". This law came into force on January 1, 1970 and provided workers with an indispensable right to sick pay for a period of six weeks. The split solution was thus abandoned and replaced by an independent claim to continued wages against the employer.

At the same time, the First Labor Law Cleansing Act created or changed regulations so that all dependent employees were entitled to continued remuneration for six weeks. The following were changed in detail:

  • the trade regulations to the effect that the termination regulations introduced in 1891 in Sections 133 a-d were repealed and only the continued payment regulation in Section 133c (2) remained, in which sentences 2 and 3 included a claim to continued payment even in the event of termination ;
  • Section 63 of the German Commercial Code (HGB) and Section 616 of the German Civil Code (BGB), where a provision for continued payment in the event of termination was also introduced.

Finally, with the creation of the Vocational Training Act (BBiG), a uniform regulation of the continued payment of wages in the event of illness for all trainees - regardless of their professional goal - was established ( Section 12 BBiG).

Continued Remuneration Act of 1994

Initial situation and need for action

Until the reunification of Germany, after the comprehensive reforms of the continued payment of wages in the event of illness in 1969, only detailed regulations were made that did not involve any fundamental changes in the continued payment of wages in the event of illness.

As a result, before the creation of the EFZG, there were regulations on continued payment of wages in the event of illness for a period of six weeks for all employees. However, the existing regulations showed differences in detail that were questionable under constitutional or European law. Of the multiple differences for the individual groups of employees, only a few are mentioned here as examples.

  • Section 1 (3) No. 2 of the Continued Wage Payment Act (LFZG) stipulated that the six-week continued wage payment did not apply to employment relationships in which the regular working hours did not exceed ten hours a week or 45 hours a month. This provision was contrary to the European law principle of equal pay for men and women (Art. 119 EG-V ), since the exclusion of the right to continued wage payment according to Section 1 (3) No. 2 LFZG almost exclusively affected women. The Federal Labor Court then confirmed that this provision was no longer applicable.
  • Due to the different bases of entitlement for blue-collar workers and white-collar workers, these groups of workers were still treated unequally: According to the Law on Continued Wage Payment, there was no entitlement to continued payment of wages for fixed-term contracts of up to four weeks. There was no comparable provision for salaried employees, so that the entitlement also existed here for such short-term employment relationships. Furthermore, the entitlement to continued remuneration for employees already arose if they fell ill in the period between the conclusion of the contract and the start of work and therefore could not start their work. For workers, however, a requirement for continued wage payment was that they fell ill “after starting work”. In 1992 the Federal Constitutional Court complained about the unequal notice periods for workers and employees and it seemed likely that this unequal treatment of workers and employees was not compatible with the principle of equal treatment, Article 3 of the Basic Law .
  • Finally, differences also arose for the various employee groups because Section 616, Paragraph 2, Clause 2 of the German Civil Code (BGB) declared the six-week period to be subject to collective bargaining: a different period could also be specified in the collective bargaining agreement. A corresponding provision was missing in Section 133c of the Trade Regulations and Section 63 of the Commercial Code, so that the period here could not be changed through a collective agreement.

In addition, the existing regulations on continued payment of wages in the event of illness were not extended to the new federal states when Germany was reunified, and the People's Chamber of the GDR made separate regulations on June 22, 1990. The regulations were based very closely on those of the Law on Continued Wages, but applied to all employees, which avoided different treatment of different groups of employees. However, this resulted in additional unequal treatment between employees in the previous and the new federal states.

This situation of continued remuneration in the event of illness made a new statutory regulation inevitable.

1993 bill

Therefore, on June 24, 1993, the government groups submitted a first draft of a Law on Continued Remuneration. This draft ensured equal treatment of all employees and would have been able to reach a consensus in the Bundestag and Bundesrat if it had not been coupled with regulations to limit abuse and to relieve the employer. In particular, the planned introduction of waiting days met with considerable opposition from the opposition, employers' association, trade unions and health insurance companies. The dispute over the law therefore dragged on until April 1994, when a consensus-based regulation was finally found that came into force on June 1, 1994 as the law on payment on public holidays and in the event of illness (continued payment law) . At the same time, the corresponding regulations in the trade regulations and in the commercial code were abolished. The regulation in § 616 BGB was set back to the original content from 1896, so that it was only applicable if the service was not due to illness. The comparable regulations in the labor code of the GDR became invalid.

Changes in 1996

At the beginning of 1996, the federal government presented a 50-point action program for investments and jobs, from which the “Program for more growth and employment” developed in the further course of the year. The aim of this program was to facilitate investment, strengthen growth and increase employment.

To implement this program, four bills were introduced into the Bundestag on May 10, 1996 in the form of the Growth and Employment Promotion Act , the Growth and Employment Promotion Supplementary Act , the Employment Promotion Act and the Act on Limiting Remuneration in the Event of Sickness Continued Remuneration Act were provided. The aim of these changes was, on the one hand, to relieve employers of the costs of continued pay and, on the other hand, to stop the abuse of continued pay.

The drafts were approved by the Bundestag on June 28, 1996 and forwarded to the Bundesrat. This rejected the drafts so that they were forwarded to the mediation committee. There was no agreement in the mediation committee, so on August 29, 1996 the Bundestag rejected the vote of the mediation committee. Since the labor law changes did not require the approval of the Bundesrat, they were passed by the Bundestag on September 13, 1996 with an absolute majority and came into force on October 1, 1996.

The main change to the Continued Remuneration Act was that the level of continued remuneration in the event of illness was reduced from 100 percent to 80 percent. Alternatively, this reduction could be offset by taking vacation days into account. There was also the option of crediting vacation days for cures. However, the regulation only affected some of the employment and training relationships, as many collective agreements already provided for continued pay of 100 percent.

Changes in 1998

On January 1, 1999, the amendments made in 1996 were largely repealed by the law on corrections in social security and on safeguarding workers' rights . However, since then, overtime payments have not been taken into account when calculating the remuneration to be paid.

Changes in 2012

In 2012, Section 3a was inserted into the EFZG. This provision stipulates that the employee is entitled to continued payment of his wages even if he is prevented from performing his work as a result of the donation of organs or tissues.

Individual evidence

  1. ^ Hedemann: Wage payment in the event of inability to work . P. 19 f .; with National Socialist characteristics also: Fluhr: Paying wages in the event of absenteeism , p. 10 f.
  2. ↑ a b c d Moll , remuneration in the event of personal hindrance, RdA 1980, 138 ff.
  3. ↑ Birtsch, Die Preußische Sozialverfassungs, p. 133.
  4. ↑ a b c Bernert: Employment Relationships in the 19th Century , p. 59 ff.
  5. ↑ See Birtsch, p. 140 f. for the bourgeoisie.
  6. ↑ a b Brand: The labor law regulations of the ALR , p. 150 ff.
  7. ^ Schubert, State Reglementation and Social Welfare in Prussian Mining Law at the End of the 18th Century, p. 312
  8. ↑ Bernert, p. 6.
  9. ^ Prussian servants' order 1810, § 86.
  10. ↑ a b c Thomas Vormbaum: Politics and public rights in the 19th century , p. 55 ff.
  11. ↑ § 91 PrGesO 1810
  12. ↑ Bernert, p. 99
  13. ↑ Bernert, p. 92 f.
  14. ↑ Müller: Schlaglichter der Deutschen Geschichte , 6.11.
  15. ↑ a b c d Schneider: Brief history of the trade unions , p. 17 ff.
  16. ^ Däubler: Das Arbeitsrecht 1 , Rn. 35.
  17. ↑ Müller, 8.5
  18. ↑ Kittner: Labor and Social Law , p. 421.
  19. ↑ Müller 8.32
  20. ↑ Law of June 24, 1861, Article 60, GS Prussia 1861, pp. 449, 491
  21. ↑ § 63 HGB, which was valid until the EFZG came into force on May 26, 1994, RGBl. , 1897, p. 219
  22. ↑ Law on the amendment of the trade regulations, June 1, 1891, RGBl. I, p. 261
  23. ↑ Müller, 8.32
  24. ↑ Schmitt, EFZG, Introduction, Rn. 25th
  25. ↑ a b Motives for the drafts of a civil code for the German Reich, Vol. II, Law of Obligations (1888), p. 463 f. - The provision was provided as Section 562.
  26. ↑ Motive II, p. 464
  27. ↑ Prot. 122, XI (p. 280)
  28. ↑  616 Paragraph 2 BGB, Section 63 Paragraph 1 Sentence 2 HGB, Section 133c Paragraph 2 Sentence 3 GewO, RGBl I, 1930, p. 517 (521)
  29. ↑ RGBl. I, 1931, p. 279 (281)
  30. ↑ Schmitt, EFZG, Introduction, Rn. 32
  31. ↑ Schmitt, EFZG, Introduction, Rn. 33
  32. ↑ BT-Drs. 2/1704 .
  33. ↑ Law of June 26, 1957, Federal Law Gazette I 1957, p. 649 ff.
  34. ↑ Law of July 12, 1961, Federal Law Gazette I 1961, p. 913
  35. ↑ Schmitt, EFZG, Introduction, Rn. 38
  36. ↑ BGBl I 1969, p. 946
  37. ↑ Schmitt, EFZG, Introduction, Rn. 42
  38. ↑ Law of August 14, 1969, Federal Law Gazette I 1969, p. 1106
  39. ↑ Law of August 14, 1969, Federal Law Gazette I 1969, p. 1112.
  40. ↑ Schmitt, EFZG, Introduction, Rn. 47
  41. ↑ See the detailed description in Schmitt, EFZG, Introduction, Rnn 51-102
  42. ↑ Labor Court Oldenburg, judgment of December 14, 1989 , Az. 3 Ca 50/88, Leitsatz, Betriebs-Berater 1990, 349.
  43. ^ BAG, judgment of October 9, 1991 , Az. 5 AZR 598/90, NZA 1992, 259.
  44. ↑ § 1 Paragraph 3 No. 1 LFZG
  45. ↑ Schmitt, EFZG Introduction, Rn. 58
  46. ↑ § 1 para. 1 sentence 1 LFZG
  47. ↑ BVerfG AP No. 16 and 28 to Section 622 BGB
  48. ↑ §§ 115a-g AGB-DDR, Gbl. I, p. 371
  49. ↑ BT-Drs. 12/5263 .
  50. ↑ See Schmitt, EFZG, Introduction, Rnn. 110-112
  51. ↑ BGBl. I 1994, p. 1014
  52. ↑ Printed in NZA 1996, 688 ff.
  53. ↑ BT-Drs. 13/4610 .
  54. ↑ BT-Drs. 13/4611 .
  55. ↑ BT-Drs. 13/4612 .
  56. ↑ BT-Drs. 13/4613 .