Sick Leave in Germany

Sick Leave in Germany: A Complete Guide to Employee Rights and Employer Obligations

In Germany, employee sick leave is governed by a well-defined legal framework that aims to balance workplace productivity with employee health and well-being. Sick leave allows employees to recover from illness without fear of job loss, while employers are given certain rights to ensure the system isn’t misused. Knowing your rights and obligations as an employee, as well as understanding your employer’s rights, is essential to navigating sick leave smoothly.

In Germany, employees can be on sick leave for as long as their illness requires, but the benefits they receive vary over time:

1. First Six Weeks: During the first six weeks of sick leave for each illness, employees are entitled to receive their full salary, paid by the employer. This period resets with each new, unrelated illness.
2. After Six Weeks: If the illness extends beyond six weeks, statutory health insurance begins to provide Krankengeld(sickness benefits) to the employee, usually covering up to 70% of their gross salary (with a cap of 90% of net income). This benefit can last for up to 78 weeks within a three-year period for the same illness.
3. Extended Illness Beyond 78 Weeks: For longer-term or chronic illnesses, the employee may need to explore other support options, as statutory sickness benefits end after 78 weeks. At this point, employees often consult with their health insurance provider and may seek disability benefits if they cannot return to work.

Employee Rights to Sick Leave in Germany

German labor law provides robust protections for employees who are unable to work due to illness, ensuring that they receive fair treatment during periods of absence. Here are the primary rights granted to employees:

1. Entitlement to Continued Remuneration: Employees in Germany are entitled to their full salary for up to six weeks of illness. This is covered under the Continued Remuneration Act (Entgeltfortzahlungsgesetz), which applies to all employees regardless of their position or salary. After six weeks, if the illness persists, statutory health insurance will begin to provide sickness benefits (Krankengeld), typically amounting to 70% of the gross salary, but not exceeding 90% of the net salary.
2. Job Protection During Sick Leave: German law protects employees from dismissal during sick leave, but only if their absence is due to a genuine illness. An employer cannot terminate an employee solely because they are on sick leave, provided that they have complied with all legal requirements and promptly informed the employer of their situation.
3. Right to Privacy: While employees must provide a medical certificate if their absence lasts longer than three consecutive calendar days, they are not required to disclose specific details about their illness. The certificate (or Arbeitsunfähigkeitsbescheinigung) confirms only the inability to work, not the diagnosis.
4. Health Insurance Coverage: Employees covered under statutory health insurance are entitled to Krankengeld if their illness extends beyond the initial six-week period. This safety net ensures that employees still receive financial support during extended periods of illness.

How to Notify The Employer About Sick Leave in Germany

Communication is key when it comes to sick leave. Both the employee and the employer have specific obligations to ensure that the sick leave process is managed smoothly.

1. Immediate Notification: Employees should inform their employer as soon as possible on the first day of illness. This can be done by phone, email, or any other method specified in the employment contract. Employees are expected to notify their employer by the start of the workday or at least as early as they can.
2. Providing a Medical Certificate: For illnesses lasting more than three consecutive calendar days, employees must provide a medical certificate to their employer. However, some companies may request this certificate from the first day of absence, so it’s always wise to check your employment contract or company policies. The medical certificate verifies that the employee is unable to work and specifies the expected duration of their absence.
3. Digital Sick Leave Submission: Recent updates to the German health system have introduced digital sick leave submissions for individuals with statutory health insurance. The doctor’s office sends the sick note electronically to the health insurance provider, which then notifies the employer. However, the employee is still responsible for informing their employer directly about their absence.

Employer Rights in Germany and Responsibilities During Employee Sick Leave

While employees have specific rights regarding sick leave, employers also have rights and responsibilities to ensure that the system is used fairly:

1. Right to Verification: If an employer has reason to doubt the legitimacy of an employee’s sick leave, they can request an examination by the Medical Service of the Health Insurance Funds (Medizinischer Dienst der Krankenversicherung). This measure ensures that sick leave is justified, but it’s not commonly used unless there is evidence of abuse.
2. No Obligation to Disclose Diagnosis: Employers are not allowed to inquire about the specific diagnosis of an employee’s illness. They are only entitled to know the duration of the absence and the fact that the employee is unfit for work. The medical certificate is designed to protect employee privacy while confirming their inability to work.
3. Reintegration Process: For employees returning from long-term sick leave, employers are encouraged to facilitate a smooth reintegration into the workplace. This may include offering reduced working hours, modifying job responsibilities, or providing additional support as the employee transitions back to work.

Can You Be Fired for Being Sick Often in Germany?

In Germany, labor laws protect employees’ rights during periods of illness. However, under certain conditions, an employer may consider terminating an employee’s contract if their frequent or prolonged absences have significant implications for the business. Although dismissal due to illness is rare and regulated by strict conditions, it’s still possible in specific cases. Here’s what employees need to know:

Grounds for Dismissal Due to Frequent Illness

1. Operational Disruption: If an employee’s frequent absences create a substantial, ongoing disruption to the business, an employer may have grounds for dismissal. For example, if an employee’s repeated short-term illnesses make it challenging to manage workloads and staffing, the employer could argue that the absences negatively affect productivity. However, the disruption must be significant and documented over a long period.
2. Excessive Costs for the Employer: An employer may consider dismissal if the employee’s frequent sick leave results in considerable costs. This is more common in cases where temporary or replacement staff must frequently be hired, leading to increased operational costs. The employer must prove that these costs have been consistently high and are unsustainable.
3. Long-Term Illness Without Prospects for Recovery: If an employee has a long-term illness with little chance of recovery and cannot perform their duties, the employer may consider termination. In such cases, the employer must show that all reasonable accommodations have been attempted. Additionally, the prognosis for the employee’s return to work must be assessed, often by medical professionals, and deemed unlikely.

Conditions and Process for Dismissal Due to Illness

Even in these cases, dismissal due to illness isn’t straightforward. German labor law enforces strict criteria that employers must meet to ensure the process is fair and justified. Here are the key steps involved:

1. Medical Assessment: Employers often require medical opinions or reports to confirm the impact of the illness on the employee’s ability to work. In cases of long-term illness, this may include multiple assessments to establish the prognosis.
2. Proportionality Test: The employer must demonstrate that dismissing the employee is a proportionate response. This means they must first consider alternative solutions, such as adjusting work responsibilities, providing medical leave, or exploring reintegration programs.
3. Social Justification: German labor law requires that dismissals due to illness be “socially justified.” This means the employer must consider the employee’s age, length of employment, and any family obligations before proceeding with termination. The law protects employees with long service and specific hardships, meaning younger employees with shorter tenures are more vulnerable to dismissal for this reason.
4. Alternative Work Options: Employers are encouraged to seek reasonable adjustments that would allow the employee to remain in the company. This could include part-time work, remote work, or job restructuring. If no alternatives are feasible, dismissal may be considered a last resort.

Employee Protections Against Dismissal for Illness

German employment law is generally protective of employees, especially regarding health-related issues. Here’s what protects employees from dismissal:

• Termination Protection Act (Kündigungsschutzgesetz): This law applies to companies with more than ten employees and offers significant protection. For employees who have been with the company for over six months, this act requires “social justification” for dismissals, making it difficult to dismiss employees solely due to illness without a justified reason.
• Protection for Disabled or Chronically Ill Employees: Employees with a recognized disability or chronic illness have additional protection under Germany’s laws against discrimination. Employers are expected to make reasonable accommodations to support employees with disabilities, and dismissals due to disability-related absences are heavily scrutinized.
• Workers’ Council (Betriebsrat): If the company has a workers’ council, they must be informed about any plans to dismiss an employee due to illness. The council represents employees’ interests and has the right to challenge dismissals that may be deemed unfair or unjustified.

When Dismissal Due to Illness is Less Likely

For most employees, dismissal due to illness is uncommon. Frequent short-term illnesses, provided they don’t cause significant disruptions, are usually tolerated under German labor laws. Similarly, if the employee is following all procedures, such as timely notification and providing medical certificates, they are less likely to face termination. Additionally, employees on long-term medical leave due to a one-time illness or accident are often protected, especially if their return to work remains a possibility with reasonable accommodations.

Employer-Initiated Investigations for Suspicious Sick Leave

In cases where an employer has substantial doubts about the validity of an employee’s sick leave, they may contact the employee’s statutory health insurance provider to initiate an investigation. This is generally a last resort and follows specific grounds and procedures.

Grounds for Requesting an Investigation

Employers may request an investigation if:

• Frequent, Short-Term Absences: Especially if these occur around weekends or holidays.
• Long-Term Absence Without Clear Prognosis: No clear return date or medical reason provided.
• Inconsistent Behavior: Social media or other behavior that contradicts reported illness.
• Out-of-Location Sick Leave: A medical certificate from a distant location without prior notice of travel.

Process of an Investigation by the Health Insurance Provider

Once an investigation is requested, here’s what typically happens:

1. Medical Review by the MDK: The Medical Service of the Health Insurance Funds (Medizinischer Dienst der Krankenversicherung, or MDK) reviews the case to confirm if the sick leave is medically justified.
2. Employee Notification and Appointment: The MDK may contact the employee to schedule an examination. They may also review medical records to confirm the diagnosis and duration of required sick leave.
3. Report to Employer: Based on the MDK’s findings, the health insurance provider will inform the employer of the outcome, confirming or refuting the employee’s sick leave status without disclosing specific medical details.
4. Possible Actions: If the MDK finds the sick leave unjustified, the employee must return to work immediately. Misuse of sick leave may lead to disciplinary action, termination, or even legal repercussions.

Getting Fired in Germany Because of Faking Illness

In Germany, an employee can be dismissed for faking an illness, as it constitutes a serious breach of trust and a form of fraud. However, this type of dismissal requires the employer to provide strong evidence of misconduct, as German labor law generally protects employees against unjustified dismissal. Here’s how the process usually works:

Grounds for Dismissal Due to Faking Illness

1. Evidence Requirement: Employers must have credible evidence that the employee was not actually ill or was misusing sick leave. This could include proof of the employee engaging in activities inconsistent with their reported illness (e.g., participating in sports or social events that contradict their supposed incapacity for work).
2. Investigation via Health Insurance: If an employer suspects misuse of sick leave, they can request an investigation through the employee’s health insurance provider. The Medical Service of the Health Insurance Funds (Medizinischer Dienst der Krankenversicherung, or MDK) can evaluate whether the sick leave is medically justified. If the MDK finds no medical basis for the absence, the employer may have grounds for dismissal.
3. Immediate Termination for Severe Misconduct: Faking an illness is considered a severe breach of trust, and if proven, it can lead to immediate termination (außerordentliche Kündigung) without notice. This applies especially if the employer has concrete evidence, such as social media posts or eyewitnesses, proving the deception.

Legal Consequences

Employees dismissed for faking illness may also face additional legal consequences, including:

• Loss of Employment Benefits: They may forfeit benefits, including sick pay, for the period they falsely claimed to be ill.
• Potential Legal Action: In cases of fraud, employers may file a legal complaint, which could lead to fines or further disciplinary action.

If the employee disputes the termination, they have three weeks to file a claim with the labor court, where the court will evaluate the evidence provided.

Reintegration After Long-Term Illness

Returning to work after a long-term illness can be challenging, and German law encourages employers to support this transition through a structured reintegration plan. The Hamburger Modell is one such example, allowing employees to gradually increase their working hours over several weeks.

In addition to reintegration plans, employers may offer flexible working hours, altered duties, or other adjustments to accommodate the employee’s needs. Open communication with HR and management ensures that the transition back to work is as smooth as possible.

Navigating sick leave in Germany involves understanding your rights as an employee, following notification procedures, and maintaining open communication with your employer. Employers are obligated to respect these rights and provide support for reintegration, ensuring that both parties benefit from a transparent and fair system. By understanding the legal framework around sick leave, both employees and employers can handle health-related absences in a respectful and organized manner.