Sick Leave: Can My Boss Withhold My Pay If I'm Under the Weather?
- Author: Frank Donovitz
- Estimated Reading Time: + - 2 Mins
Can an employer reduce my wages when I'm unwell? - Employer retaining paycheck due to employee's illness?
In the heart of Tesla's Grünheide factory, whispers of wage garnishment during sick leave have surfaced. The union, IG Metall, reports that the company often contests sick notes. But does management truly have the power to cut off pay in doubtful cases?
When employees fall ill, they are entitled to wage continuation. This principle has been enshrined for decades, first established in the General German Commercial Code of 1861 and further expanded in the Occupational Safety Act of 1891.
Wage Continuation: An Employee's Birthright
Today, the German Wage Continuation Act governs. This legislation mandates that employers continue paying their sick employees, including standard overtime, for up to six weeks. The remuneration is gross. Employees are duty-bound to promptly inform their employer of their illness. From the fourth calendar day of illness onwards, the ailing must produce a certificate of incapacity for work (AU). Employers may also request this from day one if prior arrangement has been made.
Confidentiality is paramount when it comes to an employee's health. The employee's doctor, as well as health insurers, are bound by confidentiality agreements.
Employees unable to work beyond the six-week period qualify for what's known as sick pay, an insurance benefit that can be claimed under specific conditions for up to three years.
Suspicious Sick Calls
If an employer harbors doubts about incapacity for work, such doubts are considered valid under §275 Social Code Book V if an employee is either abnormally frequent or abnormally brief in presenting sick notes, or if the employee is frequently sick at the start or end of a workweek.
Employers may then ask their employees' health insurance company for a so-called "context inquiry", which clarifies whether there's an underlying condition requiring regular treatment. However, employers may probe no further beyond this. Employers can ask an examination of the insured by the Medical Service (MD) from the insurance companies, but the insurance companies can refuse this if the AU can be clearly traced from available diagnoses.
Should aMD examination be agreed to by the insurance company and it contradicts the employee's treating physician's assessment, both parties will be notified initially. If the treating physician cannot justify their previous assessment, the insurance company will only inform the employer whether the AU has been confirmed by the Medical Service and for how long. The process is lengthy and complex, implying a potential motive for terminating the employee due to illness. However, the ultimate success of this move depends on each individual case and is typically decided in court.
Check-ins, Home Visits, and So Forth
While it's generally permissible for employers to contact sick employees via calls, letters, or in-person visits, sick employees are not obligated to respond. Advance notice is required for personal visits, known as "care visits", and these can be refused by the employee. Unannounced visits, or any form of pressure on sick employees, are strictly prohibited.
Sick employees are nonetheless expected to self-manage their behavior during periods of work incapacity to hasten recovery. They are generally allowed all activities that do not hinder recovery.
- Wage continuation
- Health Privacy
- Employee Rights
- Under the German Wage Continuation Act, employers are mandated to continue paying their sick employees, including standard overtime, for up to six weeks, adhering to the principle of wage continuation that has been enshrined for decades.
- Employees' health privacy is paramount, with doctors and health insurers bound by confidentiality agreements not to disclose an employee's medical information without consent, except for a context inquiry in suspicious cases.
- Employees are encouraged to self-manage their behavior during periods of work incapacity to aid recovery, but are not required to respond to calls, letters, or in-person visits from employers, with advance notice and unannounced visits strictly prohibited.
