Continued payment in the event of illness

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The sick leave is in Germany since 1994 Entgeltfortzahlungsgesetz regulated (EFZG). This law has formerly applying different rules for workers and employees replaced.

All employees, including trainees, are entitled to continued payment in the event of illness in accordance with the Continued Payment Act from the fifth week of the employment or training relationship for a period of up to six weeks. According to Section 4 (4) EntgFG by means of a collective agreement , a basis for assessment of the remuneration to be paid that deviates from the Continued Remuneration Act can be determined.

Germany

Claim, requirements

Not only full-time employees but also part -time employees are entitled to continued remuneration . This also includes vacation workers or employees in student jobs or a so-called mini job with earnings of up to 450 euros per month.

The continued payment of wages is linked to certain requirements.

  • The employment relationship must have existed for at least four weeks. (This deadline can be waived in collective agreements, for example in TVöD .)
  • The employee must be unable to work , d. i.e. he does not have to be able to perform the work owed . For example, hoarseness in a singer, but not in a housekeeper, can mean incapacity for work.
  • The inability to work must be the result of an illness .
  • The employee must not based on his illness incapacity debt have, where a "gross violation" is meant here. For example, a walk in the rain that causes a cold is not enough, but a traffic accident caused by drunk driving is enough. Inability to work through no fault of one's own within the meaning of Section 3 (1) EntgFG is also an inability to work that occurs as a result of unlawful sterilization or an unlawful termination of pregnancy . According to Section 3a (1) EntgFG, you are also entitled to continued payment of wages if you are unable to work as a result of the donation of organs or tissues.
  • There is no entitlement to continued remuneration in the event of incapacity for work as a result of tattoos, piercings or cosmetic surgery that is not medically indicated, because the employer only has to bear the normal risk of illness for the employee.

Duration of continued payment

The right to continued remuneration exists for a maximum of six weeks. Thereafter, sick pay is usually paid by the health insurance company for those with statutory health insurance. If an employee repeatedly falls ill with the same illness within twelve months (calculated from the start of the first illness), these sick days are added up until the six weeks mentioned above have been reached. The entitlement to six weeks of continued payment arises again if he was not unable to work due to the same illness within 6 months before the start of the new incapacity for work.

The six-week entitlement to continued remuneration also begins again if (for example in the case of the chronically ill) an employee "... becomes unable to work again as a result of the same illness [... and] a period of twelve months has expired since the beginning of the first incapacity for work as a result of the same illness" ( Section 3 EntgFG) .

The right to continued payment of wages ends with the termination of the employment relationship ; however, this does not apply if the employee is dismissed due to illness or if the employee himself terminates without notice for reasons for which the employer is responsible ( Section 8 EntgFG).

Calculation of the fee

When calculating the remuneration to be paid , the principle of loss of earnings applies: the employee generally receives the remuneration that he would have received if he had not been unable to work. Overtime is not taken into account, § 4 EntgFG. Regularly worked overtime, on the other hand, must be taken into account in accordance with a ruling by the Federal Labor Court .

According to Section 4 (4) EntgFG, the regulation can be deviated from by means of a collective agreement; In particular, the possibly more practical pre-earnings principle (reference principle) can be agreed, according to which the average earnings before the illness is decisive.

As with normal pay, taxes and social security contributions must be paid for continued pay (gross entitlement).

Advertisement and evidence

In the event of illness, the employee has two different obligations.

Notification requirement

The employee must inform his employer immediately that he is unable to work (notification of illness). The fastest possible information should enable the employer to take organizational measures to ensure representation. Employees with statutory health insurance should also notify their health insurance company of their inability to work within one week, as otherwise there may be disadvantages in terms of sick pay (see Section 49 (1) No. 5 SGB V).

The obligation to notify also applies in the event of incapacity for work abroad . Pursuant to Section 5 EntgFG, the employee must report the incapacity for work, the expected duration of the incapacity for work and his address at the place of residence by the fastest possible transmission channel. He must also report the incapacity to work and the expected duration to his health insurance company .

According to § 6 EntgFG, employees are required to notify a possible third party liability so that the employer can initiate possible steps to recourse .

The doctors and facilities participating in contract medical care as well as the approved contract hospitals in Germany are subject to an obligation to notify secondary diseases of medically unnecessary treatments . This obligation exists towards the health insurance companies if a patient has contracted an illness resulting from a medically unnecessary cosmetic operation , a tattoo or a piercing .

Evidence

If the incapacity for work lasts longer than three calendar days (i.e. weekends or days off are counted), the employee must provide his employer with a certificate of incapacity for work no later than the first following working day . This must indicate the existence of an incapacity for work and its probable duration.

The employer is entitled to request that the certificate of incapacity for work be presented earlier.

As long as the employee does not comply with the obligation to provide evidence ( Section 5 EntgFG), the employer can refuse continued payment of wages until proof is provided ( Section 7 EntgFG). This also applies as long as the employee has not reported his incapacity for work during a stay abroad.

If the employee can prove that the neglect of duty is not at fault, the employer's right to refuse performance does not apply.

Cure / rehabilitation measure

Even in the case of a cure , called "preventive medical care and rehabilitation measures" in the law , there is an entitlement to continued payment ( Section 9 EntgFG). The employee is obliged to inform the employer immediately of the commencement of the cure and its expected duration and to present him with the certificate from the social service provider or the doctor about the order of the cure without delay.

Situation in the absence of entitlement

If you are unable to work due to illness during the first four weeks of the employment relationship or if you continue to be unable to work after the end of the period of continued pay, a lower sick pay is paid by the health insurance company as a wage replacement .

After the six-week pay period has expired, however, a sick pay allowance is occasionally paid on the basis of the employment contract or a collective bargaining agreement to compensate for the financial losses caused by the lower health insurance benefit; however, such regulations are increasingly rare. An example of this is in the public service of the TVöD (sick pay allowance for a period between 13 and 39 weeks according to § 22 para. 3 sentence 1 TVöD).

Illness during vacation or time off

If the employee falls ill during his free time , this does not result in any additional claims against the employer. This also applies if the free time has been granted as compensation for overtime ; this is therefore not granted subsequently.

According to the express legal regulation in § 9 BUrlG, this is different for vacation . Sick days for which a medical certificate can be presented are not counted towards the vacation. The days are therefore to be granted.

Continued payment of wages and termination of the employment relationship

As a rule, sick pay ends when the employment relationship is terminated. If the inability to work due to illness persists beyond the end of the employment relationship , the terminated employee loses the right to continued payment. There is the exception to this, however, that continued payment of remuneration beyond the termination of the employment relationship is made by the employer if either the employment relationship has been terminated due to illness or the employment relationship has been terminated by the employee and a reason for termination is due to the fault of the employer Side that would have entitled to termination without notice .

If the employee is dismissed during the illness, he will receive sick pay after the end of the employment relationship.

Continued payment of wages and employment contract regulations

Apart from Section 4 (4) EntgFG, the employment contract cannot deviate to the detriment of the employee ( Section 12 EntgFG). A different assessment basis for continued remuneration can then be agreed in the EntgFG by means of a collective agreement . This provision, which differs from the collective bargaining agreement, can also be adopted by employers and employees who are not bound by collective bargaining agreements.

Continued payment of wages and compensation payments under social law

Claims are suspended during the period of receipt of continued payment in the event of illness

Compensation of employer expenses (pay-as-you-go system)

Compensation for employer expenses incurred in the event of illness or maternity of the employee has been regulated since January 1, 2006 by the Expenditure Compensation Act (AAG) of December 22, 2005. This compensation is regulated in two compensation procedures, the compensation procedure for illness U1 procedure and the compensation procedure for maternity U2 procedure .

New regulations as of January 1, 2006 and background

So far, small businesses have received reimbursement of the expenses for continued remuneration in the event of illness ( U1 procedure ) as part of the two equalization procedures against payment of contribution contributions, on the one hand, and also the employer subsidies for maternity allowance and the remuneration paid in the event of employment bans ( U2 procedure ) from the health insurance companies .

With a ruling of November 18, 2003, the Federal Constitutional Court declared the maternity protection regulations to be unconstitutional and requested the legislature to adopt a constitutional regulation by December 31, 2005. The court objected that the expenses incurred by employers not participating in the U2 procedure due to the maternity allowance allowance are so high that employers can be motivated to prefer male applicants to women. This is not compatible with the equality requirement of Article 3, Paragraph 2 of the Basic Law; it encourages discrimination against women in working life. The legislature has eliminated the unconstitutionality by obliging all employers to participate in the U2 procedure. In this way, all employers receive 100% compensation for the expenses caused by the motherhood of the employees. Since the contributions were to be measured by all salaries (including those of male employees), there has been no significant advantage since January 1, 2006 that would cause employers to discriminate against women when hiring / dismissing them.

Furthermore, the provisions of the Continued Remuneration Act applicable until December 31, 2005, have been in need of reform for years. So far, only the local and guild health insurance funds, the federal miners' association and the seaside health insurance fund have been authorized and obliged to carry out the compensation procedures. Until December 31, 1995, this regulation was sufficient due to the jurisdiction regulations applicable up to that point in time. As of January 1, 1996, the rules of responsibility were replaced by a right to choose between local, guild, company health insurance funds and substitute funds. This fact was taken into account 10 years later with two changes:

  • Obligation of all health insurances with the exception of the agricultural health insurances to carry out the compensation procedures and
  • For the assessment of whether an employer takes part in the U1 procedure, a uniform employee limit (30 employees) was set.

It was also taken into account that a regional association of company health insurance funds set up compensation procedures for many company health insurance funds at the end of the 1990s in anticipation of a corresponding legal regulation with the approval of the responsible supervisory authorities. In the Expenditure Compensation Act, the possibility of having the compensation procedures carried out by other health insurance companies or by health insurance associations was also standardized.

In addition, until December 31, 2005, only the continued wages of workers and trainees were reimbursable in the U1 procedure, and contribution contributions were only calculated from their wages. As of January 1, 2006, continued remuneration of employees is also reimbursable, and their remuneration is also taken into account when calculating the contribution contributions.

Services

Employers participating in the U1 procedure receive from the U1 procedure up to 80% of the remuneration to be paid in accordance with the Continued Remuneration Act and up to 80% of the employer's share of the total social security contribution ( Section 1 (1) AAG). These reimbursements can be limited by the statutes of the responsible health insurance company.

From the U2 procedure, employers receive 100% of the continued payment of wages in the event of individual employment bans and 100% of the employer's share of the total social security contribution ( Section 1 (2) AAG). In addition, during the general prohibition of employment (generally six weeks before the birth and eight weeks after the birth), they will be reimbursed in full for the maternity allowance they have paid out. The statutes of the health insurance companies may stipulate regulations for the flat-rate reimbursement of employer contributions.

Contribution from employers

The contributions are calculated by the employers participating in the U1 procedure from all the remuneration that you have paid and are subject to pension insurance. The contribution contributions for the U2 procedure are also calculated from all salaries of all employees that are subject to pension insurance.

In the case of mini-jobbers , the contributions are calculated from the remuneration from which flat-rate contributions to the pension insurance are to be calculated. The contributions are to be borne by the employers and are proven and paid with the total social security contributions.

Jurisdiction

The health insurance company responsible for the equalization procedure is the health insurance company with which the employee is insured. If the employee is not insured in the statutory health insurance, the responsibility is based on the payment of the other social security contributions.

exception
In the case of marginally employed persons ( 450 euro jobs and short-term employment), the compensation procedures of the mini-job center are responsible.

Special regulations for employees in the public sector

With the reorganization of collective bargaining law in the public sector , the continued payment of wages in the event of illness has also been standardized with effect from October 1, 2005. The assessment basis for continued remuneration is now regulated in Section 21 TVöD and the remuneration in the event of illness in Section 22 TVöD.

Most recently, the regulations for the payment of sick pay in the BAT were changed significantly from July 1, 1994. Until then, in the event of incapacity for work, those affected would continue to receive sick pay from the employer beyond a period of six weeks. As a result, the regulation relieved the statutory health insurance and burdened the public budget. With effect from July 1, 1994, this was replaced by a regulation that provides for a sick pay supplement (from the employer) on top of the sick pay to be paid by the health insurance fund up to a maximum of 26 weeks from the beginning of the inability to work. The sick pay allowance is calculated as the difference between net pay and gross sick pay.

With effect from October 1, 2005, employees who have been employed continuously before July 1, 1994 and since then were paid the difference between net pay and net sick pay as a sickness benefit supplement. For all other employees, even after the new regulation, the result will remain with the previous regulation, namely the difference between net wages and gross sick pay; the first scheme is the cheaper. In both cases, the sick pay supplement is paid after the six-week continued payment of wages has expired until the end of the 39th week since the start of the inability to work, i.e. 13 weeks longer than before.

Officer

The above regulations on continued remuneration in the event of illness do not apply to civil servants , soldiers and judges in public service relationships . The remuneration of the persons mentioned will continue to be paid out even in the event of illness without statutory deadlines. Proof of (temporary) disability must be presented to the employer in the same form as for employees . In the case of long-term illness, the latter has the opportunity to check the ability to work through examinations by a medical officer and, if necessary, to retire the person concerned because of permanent incapacity for work (Section 26 of the BeamtStG , Section 44 of the Federal Civil Service Act , Section 64 of the Soldiers Act ). The staff council is involved in both the ordering of the investigation and the retirement under most staff council laws.

history

Austria

In Austria , sick pay for salaried employees is regulated in Section 8 AngG and for workers in Section 2 EFZG. In principle, there is a right to continued remuneration for a maximum of six weeks; this period may be extended in the case of longer-term employment.

literature

  • Peter Wedde, Olaf Kunz: Continued Payment Act. Basic comment with subsidiary laws . 3rd revised edition. Bund-Verlag, Frankfurt am Main 2003, ISBN 978-3-7663-3478-7 .
  • Thomas Dieterich u. a. (Ed.): Erfurt Commentary on Labor Law . 11th edition, CH Beck, Munich 2010, ISBN 978-3-406-60876-6
  • Martin Henssler, Heinz Josef Willemsen, Heinz-Jürgen Kalb: Labor law comment . 2nd Edition. O. Schmidt, Cologne 2006, ISBN 3-504-42658-6 .
  • Franz Marhold, Michael Friedrich: Austrian labor law . 2nd completely revised edition. Springer, Vienna, New York 2011, ISBN 978-3-211-99404-7 .
  • Günther Löschnigg, Nora Melzer-Azodanloo (ed.): Continued payment of wages in the event of illness and work-related accident in an international comparison. Legal framework in an international comparison (= international and comparative labor and social law. Volume 6). ÖGB Verlag, Vienna 2020, ISBN 978-3-99046488-5 .

Web links

Germany

 Wikinews: Record: Never before have there been so few sick leave in Germany as in 2005  - news

Austria

Individual evidence

  1. ↑ Manfred Löwisch, Alexander Beck: Betriebsberater . 2007, pp. 1960–1961
  2. ↑ For those with statutory health insurance, the health insurance company can restrict or refuse benefits in accordance with Section 52 (2) SGB V in these cases .
  3. ↑ BAG, judgment of November 21, 2001 , Az. 5 AZR 457/00 , full text.