Continued Payment Act
| Basic data | |
|---|---|
| Title: | Law on payment of wages on public holidays and in the event of illness |
| Short title: | Continued Payment Act |
| Abbreviation: | EFZG (not official) EntgFG (not official) EntgFZG (not official) |
| Type: | Federal law |
| Scope: | Federal Republic of Germany |
| Legal matter: | Employment Law |
| References : | 800-19-3 |
| Issued on: | May 26, 1994 ( BGBl. I p. 1014, 1065 ) |
| Entry into force on: | June 1, 1994 |
| Last change by: |
Art. 9 G of November 22, 2019 ( Federal Law Gazette I p. 1746, 1749 ) |
| Effective date of the last change: |
January 1, 2022 (Art. 16 G of November 22, 2019) |
| GESTA : | E024 |
| Weblink: | Text of the law |
| Please note the note on the applicable legal version. | |
The Remuneration Continued Payment Act in Germany has been regulating the payment of wages on public holidays since 1994 and the continued payment of wages in the event of illness to workers, salaried employees and trainees (employees) as well as economic security in the area of home work for public holidays and in the event of illness.
content
Continued payment of wages on public holidays
Section 2 stipulates that for working hours that are lost as a result of a public holiday, the employer must pay the employee the remuneration that the employee would have received without the loss of work.
Which days count as public holidays depends on the state regulations. The fact that people are not allowed to work on public holidays does not result from the Continued Remuneration Act, but from Section 9 (1) Working Hours Act .
Continued payment in the event of illness
The right to continued payment in the event of illness is regulated in Section 3 . It exists if the following requirements are met:
- The employment relationship must have existed for at least four weeks. This deadline can be waived in collective agreements, for example in the collective agreement for the public service (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. An inability to work through no fault of one's own within the meaning of Section 3 (1) is also deemed to be an inability to work that occurs as a result of non-illegal sterilization or a non-illegal termination of pregnancy .
Duration of continued payment
The right to continued remuneration exists for a maximum of six weeks ( § 3 ). 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 six months before the start of the new incapacity for work.
The six-week entitlement to continued remuneration also begins again if 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 due to the same illness" ( Section 3 ).
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 a reason for which the employer is responsible ( Section 8 ).
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. 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).
Calculation of the fee
§ 4 determines how the fortzuzahlende to pay calculated. In principle, the principle of loss of earnings applies: The employee receives the remuneration that he would have received if he had not been unable to work. Overtime is not taken into account unless the employee has regularly worked overtime in the past.
According to Section 4, Paragraph 4, the statutory 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. So it is a gross claim.
According to Section 4a , special allowances that the employer pays in addition to current pay can be reduced for periods of incapacity for work due to illness since 1996. On this basis, several companies have made the payment of bonuses dependent on the number of sick days.
Obligations of the employee
Section 5 describes the employee's notification and proof obligations. The employee must inform his employer as soon as possible, in the case of minor illnesses usually on the first day of illness, that he is sick (sick note). This obligation includes informing the employer as quickly as possible so that he can take organizational measures to ensure that the sick employee is represented. This obligation also applies if you are unable to work abroad . The employee must report the incapacity for work, the expected duration of the incapacity for work and his address at the place of residence as soon as possible. He must also report the inability to work and the expected duration to his health insurance company.
According to Section 6 , employees are required to report possible third-party liability so that the employer can initiate possible steps to recourse .
If the incapacity for work lasts longer than three calendar days (ie 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.
If the employee culpably fails to comply with the notification and proof obligations incumbent on him, the employer can refuse continued remuneration until proof is provided. This is regulated in § 7 .
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 ). 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.
history
Even before the Continued Remuneration Act came into force, there were regulations on continued remuneration in the event of illness for a period of six weeks for all employees. However, the existing regulations showed differences in detail, which was questionable under constitutional or European law:
- 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 (2) sentence 2 BGB declared the six-week period to be a collective agreement: a different period could also be determined in the collective agreement. A corresponding provision was missing in § 133c GewO and § 63 HGB , so that the period here could not be changed by 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 Illness , in which changes to the 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 law. This provision stipulates that the employee is entitled to continued payment of his wages even if he is prevented from performing his work due to an organ or tissue donation .
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 .
Individual evidence
- ↑ BAG, judgment of November 21, 2001, Az. 5 AZR 457/00 , full text .
- ↑ Sick for work so as not to endanger the bonus. More money for healthy people: Amazon introduces controversial bonus system for employees. Focus, April 1, 2017, accessed April 2, 2017 .
- ↑ See the detailed description in Schmitt, EFZG, Introduction, Rnn 51-102
- ↑ Labor Court Oldenburg, judgment of December 14, 1989, Az. 3 Ca 50/88, Leitsatz , Betriebs-Berater 1990, 349.
- ^ BAG, judgment of October 9, 1991, Az. 5 AZR 598/90, NZA 1992, 259, full text .
- ↑ § 1 Paragraph 3 No. 1 LFZG
- ↑ Schmitt, EFZG Introduction, Rn. 58
- ↑ § 1 para. 1 sentence 1 LFZG
- ↑ BVerfG AP No. 16 and 28 to Section 622 BGB
- ↑ §§ 115a-g AGB-DDR, Gbl. I, p. 371
- ↑ BT-Drs. 12/5263 .
- ↑ See Schmitt, EFZG, Introduction, Rnn. 110-112
- ↑ BGBl. I 1994, p. 1014
- ↑ Printed in NZA 1996, 688 ff.
- ↑ BT-Drs. 13/4610 .
- ↑ BT-Drs. 13/4611 .
- ↑ BT-Drs. 13/4612 .
- ↑ BT-Drs. 13/4613 .
